How to Obtain a Domestic Violence Restraining Order
Our office is generally able to obtain Emergency and Temporary Restraining Orders within 2 to 4 days after having met with our clients. What follows is a discussion of the grounds required to obtain a Restraining Order and the process.
- Grounds to Seek Protection
To obtain a restraining order, the party seeking protection must prove that the other party engaged in domestic violence, which is abuse against:
- A spouse or former spouse.
- A person who lives with the would-be protected party or used to live with the would-be protected party
- A person with whom the would-be restrained party is having or has had a dating or engagement relationship.
- A person with whom the would-be restrained party has had a child,
- A child of a party or a child which is the subject of a parentage action
- Any other person related by the following relationships:
- Grandma/Grandpa and Grandchild (& spouse)
- Uncle/Aunt and Nephew/Niece (& spouse)
- Brother and Sister (& spouse)
Examples of the type of abuse that will establish grounds for a Restraining Order are as follows:
- Causing or attempting to cause bodily injury
- Sexual assault
- Placing a person in reasonable fear of imminent serious bodily injury
- Harassing, making annoying telephone calls/text messages/emails
- The Process
If a person has grounds for a Restraining Order, they must make a request for a Restraining Order. The judge will review the request and will either issue a Temporary Restraining Order, or deny the request pending a hearing.
The would-be restrained party must then be served with the Temporary Restraining or the denied request to provide him or her with notice and an opportunity to respond. The matter then will be set for a hearing. Both parties will present evidence and if the judge finds that one party committed acts of domestic violence against the other party and did not act in self-defense, the judge will issue a Restraining Order.
A domestic violence Restraining Order can be issued up to 5 years. The protected party will have an opportunity to request that the Restraining order be renewed prior to its expiration.
- Child Custody Implications
If there are children of the marriage and a Restraining Order is issued against one parent, there is a presumption under Family Code Section 3044 that an award of sole or joint physical or legal custody of a child(ren) to the restrained party is detrimental to the best interest of the child(ren).
If the restrained party wants to share custody of the child(ren), he or she must overcome that presumption. Taking a batterer’s treatment program, a program of alcohol or drug abuse counseling, and/or parting classes may help rebut that presumption, depending on the case.