Filing a Restraining Order in San Diego
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A restraining order can have a devastating impact on a person’s life and can be issued by the court without any type of criminal case being filed. As of September, 2014 California Governor Brown has signed new laws that change how courts deal with a restraining order case.
Two of the bills address the standard the court is required to follow, and evidence needed to issue a restraining order. The other bill deals with domestic violence criminal cases and the restraining order that is issued in those criminal cases.
If you need an attorney to help with your restraining order, contact us today to get started.
THE FOUR TYPES OF RESTRAINING ORDERS
Temporary Restraining Order
This order is issued by a judge on the same day the request is filed. Anyone who alleges physical harm, physical harassment or abuse or persistent emotional abuse can obtain a temporary restraining order with almost no proof. A wife, husband or significant other can simply file the minimal papers with the court and allege that they are suffering abuse or harassment from another person.
The burden of proof is very low, because thee instances are considered emergencies. The court will always use extreme caution in these cases and will grant temporary orders with only the slightest proof required.
Temporary restraining orders are just that, temporary, and a hearing will be set in the near future to determine if a permanent order is appropriate.
Domestic Violence Restraining Order
This restraining order is reserved for someone who is or was in a romantic, dating or marital relationship. Accusations of harassment or harm by a co-worker, neighbor or stranger are not considered domestic. A domestic violence restraining is the most common type of order applied for in the court.
These orders are issued when couples are filing for divorce and there has been a history of domestic violence. Often we have clients who are served with domestic restraining orders following a bad breakup. The biggest concern for those served with such papers is understanding what these orders mean.
If you have a restraining order issued against you this means a Judge in the San Diego Court considers you a threat. A restraining order is a limitation of your personal freedom, it degrades and takes away certain rights and liberties given by the constitution.
You are prohibited from contacting certain people, you cannot physically be in the same space as the person seeking protection. For those individuals with children their rights to visit and have custody of those kids can be greatly diminished or refused entirely.
Civil Harassment Restraining Order
These restraining orders cover all harassment that does not involve a domestic relationship. Disputes with neighbors, colleagues at work or any random individual are found under these laws. The standard to obtain a civil restraining order is higher than cases involving domestic relationships.
The consequences of a restraining order in your life are the same no matter the type of order. Seeking effective and experienced counsel in these cases is always important. The legal standards for trial and obtaining restraining order’s changes often.
Criminal Protective Order
This is an order specific to criminal cases. Anyone charged with domestic violence should be informed about what this means. In every criminal case where there is an alleged victim, the prosecutor will ask for a restraining order. This order works the same as a restraining order, however, it is tied directly to the criminal case.
Someone charged with battery or corporal injury to spouse should prepare to defend against such an order. A judge in any criminal case will usually grant this automatically on request of the prosecution unless the defense can show significant facts and reasoning why the order should not be made.
Often the worst consequence of a criminal case is not suffering a conviction but having to live with the stigma and inconvenience of a restraining order.
How does the Judge decide to grant a Restraining Order?
The domestic violence laws in California have changed to address a key factor in any restraining order case. How much time has passed since the most recent act of abuse? According to restraining order attorney George Gedulin “The primary reason for granting a restraining order is to ensure the parties are separated and prevent physical or electronic contact by an abuser to his victim.”
Looking at how recent the last contact between the parties was is key to whether a person’s fear of harm either physical or emotional is legitimate. Click here to find out what you will need to obtain a restraining order.
What Are The New Domestic Violence Laws?
What is most striking about the new law is that it takes significant discretion away from the judge. Our firm often defends restraining order cases where both parties engaged in conduct that could require a restraining order.
These cases of mutual aggression are a good opportunity for a court to warn both sides that such conduct is serious and must be avoided. A mutual no negative contact order is often a good compromise and avoids the serious consequence of a restraining order.
Anyone served with San Diego restraining order papers is immediately under court orders that limit their freedom:
- You must stay away from any places and persons listed on the court forms
- You must turn in any guns or ammunition to the San Diego Sheriff or a gun dealer
- You cannot have any contact with the listed protected persons on the forms
The new law takes this discretion away, forcing the judge to identify if one party was a primary aggressor. In forcing such legislation the judge which hears these cases is forced to assume one party was being either abusive or harassing. Not every case has a dominant aggressor, often fights escalate to levels that are unsafe but hardly warranting a restraining order.
Criminal Protective Orders
The second new law effecting restraining orders deals with criminal domestic violence. The criminal protective order is often issued along with any new criminal charge for domestic violence, either misdemeanor or felony. The new law expands the definition of domestic violence to include abuse against children of a spouse or co-habitant.
This expansion is likely to have a significant impact on all future domestic violence criminal cases. Anyone accused of causing harm or threatening harm to a child of a former spouse or partner can expect to face a criminal protective order.
For more information on this topic, please visit our San Diego domestic violence page.
What Are The Consequences?
So what if I get a restraining order, what does that do to me? Don’t be so quick to dismiss this court order. A restraining order is extremely serious and can remain as an active court order for years. Restraining orders can show up on your credit report, preventing you from getting a loan or employment.
These orders also show up with all law enforcement, which means every traffic stop and every time you fly you can be questioned about the restraining order.
A restraining order can last up to 5 years and can be ordered again by request of the protected party. Don’t ignore a restraining order if you have been served, you need to seek advice immediately.
HOW DO I DEFEND AGAINST A RESTRAINING ORDER?
The two most important things you can do is show up, and be prepared. A judge in the superior court hears false statements, half-truths, and flat out lies every day. People seek restraining orders for many inappropriate and sometimes fraudulent reasons. If you are being falsely accused of harassing conduct then you need to stand firm and have your voice heard in the court. Getting a temporary restraining order served on you is not the end, you have to act and preserve your rights.
The biggest concern with restraining order, especially domestic violence orders is the standard of proof. The burden on the person seeking a protective order is very low, much lower than in a criminal case. The judge must only be convinced it is likely that abuse, physical harm or harassment has occurred in the past. The standard is essentially 51%. If the judge thinks an allegation is 51% true, and the allegation is serious then he may grant a restraining order.
Defending these cases takes years of courtroom experience and knowing how to seek out and prove the lies and inconsistencies in a witness’s story. Domestic disputes and allegations are complicated and can’t be left to chance.
Restraining Order Attorney’s Fees
For any restraining order being requested the law provides that attorney’s fees can be awarded. Fees for a restraining order are only granted to the prevailing party. However, even when a party prevails the judge in the case has the discretion to grant or deny attorney’s fees and costs.
If the Respondent in a restraining order case is successful in their defense they can ask the Judge to grant any attorney’s fees and costs paid. Although it is not common for a judge to grant a request for attorney’s fees every person should use caution before requesting a restraining order.
For a Civil Harassment Restraining Order, the Judge is more likely to consider whether granting attorney’s fees and costs is appropriate. If the Petitioner succeeds in their request for a permanent restraining order the judge will look at the facts of the case. What fees and costs were actually paid to an attorney is the major consideration for the judge. In the same way, if a respondent is successful in defending against a restraining order they can request and be awarded their attorney’s fees.
What Is A Prevailing Party?
Anyone who files for a domestic violence or civil harassment restraining order should be aware what it means to prevail in court. For a civil restraining order, the prevailing party is not only the party who gets their petition granted. If a petitioner dismisses their restraining order petition the law states that the defendant could be considered a prevailing party. While there is always a risk in having a full hearing for a restraining order a party should be aware of what filing a dismissal means for their case.
If no relief is granted against the defendant and no permanent order is issued, then the defendant is the prevailing party. If the petitioner dismisses the restraining order case then the defendant is a prevailing party.
Discretion To Grant Attorney’s Fees
Unless both parties stipulate to dismiss a restraining order case there will always be a prevailing party. At this point, the judge has the discretion to decide if the prevailing party should be awarded attorney’s fees. For a civil restraining order these decisions come down to the specific Judge assigned to the case and their normal procedures.
While some judges grant attorney’s fees very rarely others are more willing to hear arguments why attorney’s fees should be awarded. Familiarity with the standards and procedures each Judge applies in their courtroom is essential for every restraining order case.
With a domestic violence restraining order, the judge considers additional factors. The judge will look into the need of a party to be awarded attorney’s fees and the opposing parties ability to pay.
Restraining Order Modification
What can be so frustrating for those individuals and families affected by a restraining order is trying to change or remove a court order. Even when a spouse or family member has a good relationship with a protected party getting the court to change an existing restraining order is very difficult. Experience in negotiating with prosecutors and Judges is essential to having protective orders modified.
There are thousands of families who are forced to remain separate because of unfair and improper restraining orders. Husbands and wives unable to spend time with their children due to orders which should have been modified and withdrawn months or years earlier.
Restraining Order Filing Process
An attorney who knows the laws on restraining orders can help you with the two-part process of filing the order. The first part involves filing for a temporary order, and after about three weeks, you and your lawyer will see a judge and make a case for making the order a permanent order.
The temporary restraining order is done without a formal hearing in front of the judge. Paperwork is completed with the client and submitted to the judge for review. A request for the order is approved and signed by the judge with a hearing date set in the near future.
One important factor in the restraining order process is having the other party served, usually by the Sheriff.
Until you have a permanent order the temporary stay away order will protect you and keep the offending party from coming near your workplace, your children, or your home. In addition, the offending party will not be able to contact you by phone, email, or even social networking sites.
How Do I Get A Restraining Order Today?
The first restraining order a court can grant is called a temporary restraining order. This order is granted on the same day a request for a restraining order is filed. This process is similar for a domestic violence and civil harassment restraining order.
First, the required court documents must be properly filled out and signed. Any additional declarations and evidence that should be included with the petition must be attached to these papers. Once all forms all complete and declarations attached the entire packet is filed with the court clerk. In San Diego, a filing can be done in the business office of all the major courts that serve San Diego.
After the restraining order petition is accepted by the clerk it is sent to a Judge for review. There is almost never a hearing or chance to speak with the judge when seeking a temporary restraining order. The judge reviews all paperwork in his office or a closed courtroom. The judge will review the requested restraining order and determine what orders are appropriate to make on that day.
If the temporary restraining order is granted it will only be valid for a specific number of days. Usually, a temporary order is effective for a maximum of 21 days. When the judge grants a temporary order they also set a hearing date several weeks in the future. This future hearing date is to decide if a permanent restraining order should be granted. The temporary order automatically expires on the date of the permanent restraining order hearing.
Permanent Restraining Order Hearing
A hearing for the permanent restraining order can take a matter of moments or several days. Every restraining order case is different; some with multiple witnesses to events occurring over months or even years. As the courts continue to lose funding it becomes difficult to get extensive courtroom time for long hearings. So while a temporary restraining order is intended to be in place for weeks it may actually take several months before a full permanent order hearing is possible.
A hearing on any restraining order can be very emotional; with both sides having strong feelings and resentments about the situation. The judge hearing the case will look at every aspect of the people testifying including how they sit, speak, answer questions, and make eye contact. Credibility is the most important factor the judge will consider when it comes to a person’s testimony.
Who Is Protected by A Restraining Order?
The scope of a San Diego restraining order that can be granted by a court depends on the type of restraining order you are seeking. Protection for household and family members can be more easily obtained in cases of domestic violence. Civil harassment restraining orders are different and are more commonly granted only to individuals and do not extend to other family members.
Household or Family Members
When requesting a domestic violence restraining order (DVRO) the court will want to know the specific facts and details surrounding the allegations of abuse or violence. In domestic cases it is common for physical violence or severe verbal altercations to involve young children in the home. In cases of serious domestic violence and possible threat of harm to minor children the court will take particular notice of these facts which may affect a final decision on who the restraining order will protect.
If you have been served with a restraining order it is important to know and understand your rights and potential long-term consequences. If you have minor children with your spouse, partner, boyfriend, girlfriend the individual requesting the order can include children in the order of protection. Restrictions on your access to the family household, school and childcare extend to all individuals that are included on the order granted by the court.
A lawyer experienced with restraining orders can explain the court process and ensure that you understand your options at every stage. Filing for a restraining order or defending against one can be technically difficult and emotional. Technical knowledge and training in the areas of domestic violence and criminal defense are always important for a restraining order hearing.
Can I Include My Parents in The Restraining Order?
Generally, if you live separate from your parents in on your own residence your restraining order cannot include your parents. While many individuals feel that a threat of harm or immediate danger may extend to other members of their family most judges disfavor granting such broad restraining orders. To include any family members in your restraining order request you must demonstrate that they have suffered specific instances of physical harm or threat.
Brandishing a weapon or even continual verbal threats of assault can constitute a sufficient reason to grant a restraining order. The consequences and impact on individual rights from a restraining order can last a lifetime, which is why courts look to protect those people in threat of immediate harm.
Can I Include My Friend In My Restraining Order?
For a court to grant a restraining order which includes a close personal friend or roommate would require a significant amount of evidence that this person is under the same threat of harm as the person requesting the restraining order. Proof of such situations often requires significant investigation, interviews with potential witnesses, and the use of private investigators. The facts and witness statements in restraining order cases are essential elements in obtaining a permanent restraining order.
Most importantly Don’t Delay!
Act quickly if you have an upcoming hearing date for a permanent restraining order. To be granted a restraining order it is important to have assembled the evidence in your case properly and in compliance with local court rules. Judges hear thousands of restraining order cases and expect that the parties in a case will be prepared to present their case. Preparation and research is key to success in the courtroom.
Contact our San Diego restraining order attorneys at (858) 281-4605 today!
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