If you or someone you know is navigating such a dangerous situation, it’s essential to seek the appropriate support and resources available. A restraining order (also called a protective order) is a legal tool designed to protect individuals from harassment, threats, abuse, or violence. In California, there are different types of restraining orders depending on the relationship between the parties and the type of harm involved. If you are seeking legal protection during a high-conflict divorce or child custody dispute, understanding the process of filing a restraining order is crucial.
Types of Restraining Orders in California
There are several types of restraining orders in California, including Domestic Violence Restraining Order, Civil Harassment Restraining Order, Workplace Violence Restraining Order, Automatic Temporary Restraining Order, and Elder or Dependent Adult Abuse Restraining Order.
The main types of restraining orders involved in divorce and custody disputes are:
Domestic Violence Restraining Order (DVRO)
DVROs may be filed when you need protection from someone you had a relationship with such as your spouse, an ex, or your child’s other parent. DVROs can offer a form of protection for individuals from physical violence but also behaviors such as stalking and harassment.
Automatic Temporary Restraining Order (ATRO)
The California Family Code requires courts to include an ATRO in every divorce action, as well as in cases for legal separation and parentage. As soon as one spouse signs the petition asking the court to end the marriage, the law requires a temporary restraining order to be contained in the summons. ATROs impose restrictions on both parties in the case. The order essentially preserves the status quo during the course of the divorce proceedings to limit the ways one party can act to injure the interests of the other. Restrictions involve things like selling property and moving children out of the state.
Steps to File a Restraining Order
Step 1: File forms with the court
The first step in seeking a restraining order is filing forms with the court in the county where you reside. These forms provide an opportunity for you to explain to the court why obtaining a restraining order is necessary and to highlight the potential threats or risks you face. It is important for applications to be thorough and detailed and may include photos, police reports, text messages, phone logs, and more.
Step 2: Judicial Review
After your forms are filed, a judicial officer will review the information and decide whether the individual is in immediate need of protection. If they are, a temporary restraining order is issued within one or two business days of filing.
Step 3: Serve the Restraining Order
After an order is issued, it must be served on the person being restrained. The person serving the order must be someone other than the victim who is 18 years or older. In California, a marshal or sheriff’s deputy can serve the order upon request.
The temporary order is enforceable until a DVRO hearing takes place at a later date set by the court.
Step 4: Attend the Court Hearing
To seek a permanent restraining order, the individual who filed for the order must attend the court hearing. At the hearing, both parties can present their arguments to the court. In determining whether to grant a permanent restraining order, the court will review the evidence presented and several factors, including:
- Evidence of abuse or harassment
- Evidence of an immediate and ongoing threat
- Relationship between the parties
- Criminal history
- Witness testimony
- Impact on children and family members
If a permanent restraining order is issued, it can last up to 5 years.
An Attorney Can Help You Obtain a Restraining Order
It’s essential to know that seeking this kind of protection is a courageous step towards regaining control and ensuring one’s well-being. No one should endure abuse, stalking, harassment, or other harmful behavior and there are resources available to ensure your well-being throughout the divorce and custody process. An attorney can help you properly document instances of abuse and threats and file for a restraining order with the court.
At the Law Office of Darshann M. Wienick, we specialize in high-conflict situations and can help ensure your interests and the interests of your child are represented. If you find yourself in need of a divorce or child custody attorney, consider partnering with us. Get in touch today to schedule a consultation.
