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Process for Obtaining a Restraining Order

Process for Obtaining a Restraining Order

Process for Obtaining a Restraining Order

Restraining orders have saved many Californians from harm or death. They also help some victims to live their lives peacefully and not worry as much about what could happen. However, if you are in a position of needing to pursue such an order against someone in your life, it can be confusing and intimidating. Our experienced Monterey County family law attorneys can help you understand what to expect when filing for a restraining order.

Speak with a Qualified Attorney or Advocate

The steps in obtaining a restraining order can vary depending on which jurisdiction you live in and what type of restraining order you are seeking. Speaking with a seasoned family attorney about your situation as soon as possible can help ensure you are taking the proper steps to protect yourself and your children. In addition, if you expect to have other legal matters involving the abusive person, such as a divorce proceeding or child custody case, an experienced attorney can help you understand how these issues will interact.

Determine Eligibility for Various Types of Restraining Orders

A restraining order is a legal tool used to protect yourself (and sometimes your children) from property destruction and, more importantly, physical, emotional, or financial abuse. While the most common type of restraining order is a domestic violence restraining order to protect spouses, children, romantic partners, and family members, other types can include:

  • Elder or Dependent Adult Restraining Order
  • Civil Harassment Restraining Order
  • Workplace Violence Restraining Order

Usually, the type of relationship (if any) you have or had with the person who is the subject of the restraining order will determine which type of order is most appropriate for your situation.

Complete the Necessary Documentation

In Monterey County, to obtain a domestic violence restraining order, you must complete the following forms to the best of your ability:

  • Confidential CLETS Information
  • Request for Order, describing the date of each incident of abuse, names of any individuals who witnessed the abuse, fact-based description of the abuse that tells the story of what happened
  • Notice of Court Hearing
  • Temporary Restraining Order
  • Restraining Order After Hearing

Some forms, like the Notice of Court Hearing, have sections for you to fill in, but some of the forms will need to be completed by the court. A lawyer or domestic violence advocate can help you better understand what information to include.

File the Forms

You will need to bring the original forms to the courthouse at the Restraining Order filing window (some jurisdictions allow for e-filing). From there, the court clerk will help you follow the procedures for your county. Many courts require copies of your forms, so it is a good idea to bring multiple copies. You will receive a case number, and the clerk will tell you when you can come back to pick up your documents after the judge has reviewed them. Same-day processing may be available in some counties, but the initial review can take up to one full business day. There is no filing fee for a domestic violence restraining order, and e-filing may be available in some jurisdictions.

Review and Distribute Order

A judge will review your forms to determine if your request for a Temporary Restraining Order (TRO) should be granted. If so, they will grant your request for a TRO and set a court hearing date in the next 20 days. The court date will serve as the expiration date for any temporary orders.

If the judge decides to deny the TRO, they will still set a court hearing date, and the court will let you know when you can come to get your documents if they are not returned electronically. 

Once the court clerk has filed your forms, any temporary restraining order issued will become part of the official court record and will be entered into a computer system where it can be seen by law enforcement. You may need to provide copies to anyone else protected by the order and distribute copies to places where the person named in the order is not allowed to go, such as your child’s school, your place of work, or with your apartment building’s security.

Serve Papers on Other Party

The person named in the order must receive a copy of it, so they are informed of the new restrictions against them. This is known as “serving” the papers. You won’t have to do this yourself; in fact, any person protected by the order cannot serve the papers to the other party. A third party must deliver the order in person by a specific date and will need to provide you with a Proof of Personal Service form, which you’ll need to file with the court. Law enforcement officers may be able to serve papers in your area, or you can work with a business that offers “process serving.” The court/sheriff may have the documents served to the other party if they live in Monterey County. If you are represented by a local restraining order lawyer, they can arrange for the documents to be served on your behalf. 

Attend Court Hearing

The hearing can be an emotional and stressful experience, so it’s important to prepare yourself in advance so you can share your side of the story clearly with the judge. You may write out notes and read from them in court if needed, and it can be a good idea to practice what you want to say and the orders you want to request. You may have an interpreter present if needed.

Be sure to bring any evidence that supports the accusations you’re making, such as medical records, threatening texts or emails, or photos of injuries or property damage. Witness statements may also be included but may need to file a written copy of the statement with your original court forms.

Normally, the judge will make a final decision on the restraining order at the end of the hearing. If more information is needed, they can also choose to postpone the case and issue a new court date.

File and Serve Final Order

Long-term restraining orders can last for up to five years in California. Once the judge has granted all or part of the restraining orders you requested, they will need to be filed with the court, and the restrained person will need to be served again. If they attended the court hearing, serving the order is not required, but it may still be a good idea. If the order was denied, you might be able to file an amended request by providing additional information to the court. An experienced family law attorney can assist you with this process.

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Don’t Hesitate to Talk to a Monterey County Restraining Order Attorney

If you need the protection of a restraining order, don’t wait to take action. An attorney from Miranda, Magden & Miranda, LLP can help ensure you are using the right tools to protect yourself and taking the proper steps in obtaining a restraining order. Contact us today for assistance getting the protection you need.

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