How Does A Restraining Order Work?

What Is A Restraining Order?

A restraining order is a court order directing someone to stay away from a person or place.  There are different types of restraining orders, but most are domestic violence restraining orders.  You can only obtain one under specific circumstances; namely, you need to be or have been in a certain relationship with the restrained party.  Any romantic relationship will qualify, as will someone you live with or used to live with.  Most family, in-law and step-family relationships also qualify.  In addition to having the proper relationship to the restrained person, he or she must have “abused” you or at least credibly threatened to abuse you.  If you qualify, you can “petition” the court for the restraining order, making you the “Petitioner” and the restrained party the “Respondent.”

What Does A Restraining Order Do?

Restraining orders can cover a number of subjects.  They can order the respondent to stay away from a place, car, person, a person’s family or children, dogs or pets, and other things. They can require the respondent to make payments on a jointly owned car, a family phone plan, and other such shared expenses.  They can order one person to move out of the family home, and get rid of guns and ammunition.  In other words, they’re very serious.  And they can last for anywhere from one to five years!

How Do Judges Decide Whether To Impose A Restraining Order?

I have sat through a lot of restraining order hearings.  The good news is that judges in Los Angeles Superior Court have impressed me with their overall judgment and fairness.  They can usually tell very easily when someone is lying or omitting important facts.  And sometimes, I have seen them make decisions that are surprising but fair.  For example, I saw one couple who had been in a violent altercation, and one party had intentionally damaged the other party’s car.  The judge heard them out, and decided not to issue a restraining order because there was not a “pattern” of abuse and both parties had engaged in violence against the other.  At first I was surprised, but in retrospect it was a wise decision.  Many other times I’ve seen judges refuse to issue a restraining order because the parties have broken up and are not in contact anymore.  That’s also a wise decision, because restraining orders can have a very negative impact on the respondent’s life.  Once, I saw a judge go through a hearing very patiently with a petitioner, explaining to her that nothing she had written down in her petition allowed him to enter the order against the respondent.  He questioned her with his standard litany: “Has the respondent ever hit you with a closed fist?  Choked you? Pushed you so that you fell down?” and so on, to all of which the woman answered “No.”  The judge then asked her to tell him the worst thing her boyfriend had done, and she replied that he had taken a baseball bat to her car.  The judge was still unconvinced and started to say that property damage was not sufficient; she then explained that she had been inside the car while it happened!  Had the judge been less patient or thorough, he would have simply dissolved the temporary restraining order and dismissed her without getting to the bottom of the problem.

How Do I Get A Restraining Order?

In Los Angeles, you should first read the court’s helpful information about restraining orders.  You will need to fill out this form, this form, this form, and probably also this form for description of the abuse.  If you are the spouse or domestic partner and you want financial support, also fill out this income and expense declaration and this financial statement.  If you have children with the respondent, file this request for visitation and custody orders, plus this order for custody and visitation,  If you’re worried about the respondent traveling with the children while he or she has visitation or custody of them, make sure to also fill out this request for no travel.  Once all your forms are filled out, make a copy.  Then, file your paperwork with the court.  You can ask at the information or clerk’s office where to file these documents.  Once you have your conformed (stamped) copy, which is your receipt and proof that the court has your paperwork on file, make another copy for the respondent.  You may also need extra copies if there are other protected people (like your children, parents, roommates, etc).  Then, you’ll need to have someone other than you over the age of 18 physically give the papers to the respondent.  Once they’ve done that, have them fill out and sign the proof of service.  Make copies of that and file it with the court as well.  Remember, the court MUST see a valid proof of service in your file or you will have to come back another day.

How Do I Defend Myself Against A Restraining Order?

What if YOU are the respondent – how do you defend against a restraining order?  The answer is, of course, almost as varied as relationships themselves.  It depends on what the other side is claiming.  Sometimes the other person is lying about everything; other times, about just one or two things.  It’s important to figure out if you need to challenge them on everything they’re saying and what documentation could prove their lies.  Sometimes they’re claiming behavior that does not necessarily qualify for a restraining order, or there is important context (such as self-defense or consent) that changes the judge’s perspective on what happened.

What Should I Bring To The Hearing To Defend Myself?

Any documentation that supports your position is helpful.  I have often seen judges look at pictures and texts on a phone when they are felt to be relevant.  But keep in mind, as the respondent, simply attacking the petitioner’s character or reasons for bringing the restraining order are not enough.  You must show the abuse did not happen.  This is usually not proven through documents, with the possible exception of damaging text messages (for example, where the petitioner apologizes for hitting the respondent or damaging his/her property) or records of repetitive phone calls to the respondent.  I defended a case once where the petitioner was claiming he was in fear of his life because the respondent had threatened him in their shared home.  We brought in records of her hotel stays proving she was the one who had paid to spend the night elsewhere when they fought, and we also brought in evidence that he, the petitioner, had called the respondent upwards of 50 times in one hour to get her to come back.  The restraining order was dissolved, and the judge really let the petitioner have it.
Of course, if there is a witness to the abuse, the petitioner should bring that person in.  Typically, I don’t like to bring in witnesses when I defend respondents, because they cannot testify that abuse never happened.  Even if the petitioner makes statements and does things that seem counterintuitive for someone who has been abused (such as loving text messages sent right after the alleged abuse, plans to get married in spite of the abuse, statements to the effect that they love the respondent or blaming themselves for the incident in question), the judge’s response will almost invariably be: “Couples reconcile all the time; it doesn’t prove abuse.” However, I have on rare occasions brought in a character witness who can testify that the petitioner is abusive, a liar or is mentally unstable.  At those times, the witness did prove useful.

Should I Get A Lawyer To Defend Me Against A Restraining Order?

Probably not – but maybe.  The process is designed with the idea that people should be able to defend themselves without a lawyer, so don’t rush out and hire someone just because you can.  The main reason to get a lawyer to defend you against a restraining order, in my view, is if the other side has (or is) a lawyer, or if the stakes are extremely high – as in child custody or your ability to live in your home or go to work.  Another reason is that sometimes, the abuser files a restraining order when the relationship is threatened or ends; in some of these cases, the respondent has been through so much trauma and manipulation at the hands of the petitioner, and the accusations may be so overwhelming, that they may need a lawyer simply to help guide them through the process and make sense of the claims and what evidence actually needs to be presented.

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