Civil Harassment Restraining OrderIf you or someone you know is being abused or harassed by a friend, co-worker, family member, spouse, or other, it’s important to get legal help immediately.
Deciding on the best method to get legal protection from abuse or harassment can be daunting and scary. Mendes Weed, LLP understands that it is often difficult to proceed with legal action against the abuser, who is often a friend or family member. Fear and threats by the abuser often make it challenging to seek legal counsel, let alone take action.
Mendes Weed, LLP wants to help you feel safe and secure. We will listen with compassion as we advise you and your family of your rights.
We will help navigate you through the process and examine such factors such as: what type of relationship exists between the person being abused or harassed and the person doing the abuse/harassment; the age of the person being abused or harassed; and the type of abuse or harassment.
With this information, we will brief you regarding the law and what type of protection is available and what needs to be done to get that protection.
Ensuring you feel safe and secure is our primary objective.
Types of Civil Restraining Orders
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day.
The emergency protective order starts as soon as the Judge issues it and can remain in effect for up to 7 days. This provides enough time for the person to be protected to go to court to file for a temporary restraining or
Temporary Restraining Order (TRO)
TROs are more permanent than EPOs. When you go to court to ask for a civil harassment restraining order, you will complete form paperwork in which you will explain to the judge everything that occurred leading to your need for a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order. Temporary restraining orders usually last about 20 to 25 days, until the court hearing date.
Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is an incident of violence or severe harassment (or series of incidents), the district attorney will file criminal charges against the person committing the violence. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) that is effective while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
“Permanent” Restraining Order
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years but can be renewed prior to their expiration.
Obtaining a Civil Harassment Restraining Order
This type of restraining order normally begins with a non-family or non-domestic dispute. Physical violence is not required to substantiate a Civil Harassment restraining order. Threats alone can be enough. It is governed by California Code of Civil Procedure 527.6.
Procedurally, the first step in obtaining a Temporary Restraining Order (TRO) is to complete the proper and file them with any evidence supporting the request. This can be photographs, police reports, etc. When the paperwork is filed, the Clerk will assign the case a hearing date and the request(s) and evidence will go to the Judge for review. The Judge will review the request and supporting evidence and make a decision as to whether or not the TRO should be granted pending a hearing. Absent an extraordinary showing of good cause not to, the forms will also need to be served on the person from whom you are seeking protection by a non-party to the case. A proof of service evidencing this service must be filed with the Court for your case to be heard.
At the hearing, the Judge will determine whether or not the request has been supported by “clear and convincing evidence.” In the event that the TRO request it granted, it will be in effect for 3 years. Any request to renew the TRO must be made before the end of the 3 year period.
Most restraining orders are CLETS (California Law Enforcement Telecommunications System) Restraining Orders. CLETS restraining orders are traceable and can negatively impact your record for the purpose of background investigations. It also will prevent you from being able to own and/or possess any firearms. It is imperative that you do not disregard a restraining order that has been filed against you.
Standard Restraining Order Procedures
1. The person requesting protection files court forms asking for the civil harassment restraining order with the Court Clerk.
2. The judge decides if the order should be granted by, or before, the next business day. Then, the clerk sets a hearing date.
3. If the judge grants the orders, he or she will first make “temporary” orders that only last until your court date. The court date will be on the paperwork.
These temporary orders usually require that:
the restrained person to have no contact with the protected person(s); and/or
the restrained person to stay away from the protected person (and other protected people).
4. The person asking for protection has “serve” the restrained person with a copy of all the restraining order papers before the court date. Service requires that someone 18 or older who is not a party to the case must hand-deliver a copy of all the papers to the restrained person.
5. Both sides are to appear at the court hearing. If the person requesting protection does not attend the hearing, the TRO will usually terminate at that time. If the restrained person does not attend the hearing, he or she will not have the opportunity to be heard in defense of the order.
6. At the hearing, the judge will decide to continue or cancel the temporary restraining order. If the judge decides to extend the temporary order, the “permanent” order may last for up to 3 years.
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Lisa Mendes, Family and Divorce Attorney
Partner Lisa Mendes leads our family law and divorce practice at Mendes Weed, LLP based in our Walnut Creek office. The law firm has years of successfully securing a solid and healthy future for clients through legal and emotional support.
Lisa is known for her aggressive defense of her clients as well as her knowledge of the law and how it pertains to their situation. She advocates for the rights and well-being of her clients and that of their children and family. She has a reputation for being a very fair negotiator and talented communicator. This streamlines and expedites the process, and helps when dealing with judges and other lawyers.
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