What is a restraining order?
A restraining order is a court order filed in civil court that is meant to keep one person from harassing another. It is not the same as filing charges and you do not need law enforcement or a lawyer to start the process.
There are different types of restraining orders. This page provides overviews of restraining orders that deal with domestic violence. The laws that pertain to domestic violence are different from laws for family members, strangers, employees, etc.
There are a lot of great places on the web that can help you with the process, but we like WomensLaw.org the best. It is a great site and will answer most of your questions.
You can get these forms either from the court house, the Self Help Center at the court house, the local Victim Witness program, or through the advocates here at HDVS. Learn more at www.humboldt.courts.ca.gov/sh/domesticviolence.htm
What do I need to know?
In general, there are a few things you need to know when you are deciding whether or not to file for a restraining order:
- The presence of physical abuse or a call to the police is not necessary to file a restraining order. If you feel afraid of the person and can clearly explain to a judge why you are afraid you may be able to file for a restraining order. Remember, abuse can be emotional. For example, if you are afraid that if you leave your partner s/he will stalk you or harm you or your children because they have threatened to do so, you can file a restraining order to help keep you safe while you negotiate custody agreements, move to a different location, or file for divorce.
- When you ask for the paperwork, you will get a HUGE stack of paper. DO NOT PANIC! You only need to fill out a few of these forms at a time throughout the court process. Your local Family Court office, Self-Help Center (located at the Humboldt County Courthouse), or HDVS will help you do it for free. In most situations you do not need a lawyer but we can help connect you when appropriate.
- You will have to go court and your abuser will be there. You are required to attend all of the hearings or your case will be dropped and you will have to re-file the restraining order.
Will the restraining order really protect me?
This is a hard question to answer–in theory, yes. For many abusers, the ordeal of going to court and the threat of jail is enough to convince them to leave you alone or begin to act more civilly. For others, it is only a piece of paper and they are going to do what they are going to do. There is no way to predict how someone will react. Even if they say they will not pay any attention to it, it may just be a bluff–they may end up following the restraining order and you can move on with your life.
In the end, in most cases, it is very helpful to have a restraining order on file. Even if you think they will not pay any attention to it, having this document can help you access benefits you may not have been able to otherwise, like housing assistance or victim’s compensation. It also gives law enforcement authority to remove the restrained person if they violate the restraining order. In the end, you are the expert in your situation and you will have to decide what is best for you and your family.
There are a few important things to consider:
- While a violation of a restraining order is a felony and can mean jail time, the police can only address a crime they have actually witnessed themselves. For example, if your abuser is not supposed to be near your house, but you keep seeing them drive by, unless you have pictures to prove it, the police cannot do anything because they do not see it. Document all the ways you think your abuser is violating the restraining order and contact your local District Attorney’s office, domestic violence agency, or Victim Witness program for assistance.
- The burden of properly filing the paperwork is on you. You should carry a copy of the restraining order with you wherever you go and make sure that everyone who may need to know about it has a copy. This includes schools, doctor’s offices, and your place of employment. Keep a copy in your bag, your car, and your house. You can also ask a domestic violence agency to keep one on file for you. Law enforcement in your area should have a copy as well, especially if you move to a new area.
If you have questions or concerns, speak with an advocate before you file.
Types of Restraining Orders
EPO: Emergency Protective Order
An EPO can only be obtained through law enforcement after a crime has been committed. It can only be obtained after the officer has consulted with a judge. It is good for approximately five days and is usually very specific in what it covers. It does not permanently change custody, child support, or rights to housing. It is meant to instruct the abuser to stay away from the abused person long enough for that person to obtain a Temporary Restraining Order through the Court system. You do not need an EPO to obtain a TRO.
TRO: Temporary Restraining Order
A TRO is the first step in obtaining a more permanent Restraining Order (RO). It does not accuse anyone of a crime. In general, a TRO takes about 3-5 days to obtain but is not made permanent until it is ordered so by a judge at a hearing. You must go to all hearing dates or the order will be dropped and you will have to re-file. Anyone can file for a TRO, including the person you want protection from filing against you.
RO= Restraining Order
A RO is the final, approved agreement of the TRO which has been ordered by a judge after the hearing. It does not accuse anyone of a crime and will be in effect for 1-3 years, as determined by a judge. A violation of the order by the restrained person is a felony.
CPO= Criminal Protective Order
A CPO is ordered by the court as part of a criminal trial. It carries more weight than a RO because it is usually part of someone’s probation or parole. In most cases, the victim is consulted by the prosecuting attorneys or a victim’s advocate to determine the terms of the CPO, but not always. It tends to be permanent or for the duration of the probation. If you have been involved in a criminal trial, contact the District Attorney’s office or Victim Witness program nearest you to determine if there was a CPO issued for you.