A divorce or separation of two people in a relationship is often a complicated and drawn-out affair. One party may find that the other party is not upholding certain parts of their agreement or is crossing a pre-determined line. In this case, you may be exploring a restraining order to prevent the party from continuing in this action.
In the State of California, there are several types of restraining orders, as it is a catch-all term that can describe various legal actions and orders. If you are seeking a restraining order for a civil matter, you must petition the court.
If you are currently experiencing domestic violence, speak with the police to issue an emergency protective order against your partner, harasser, or abuser. This is different from a restraining order.
At San Diego Family Law Attorney, we can guide you through the process of obtaining or complying with a restraining order. We provide the information below to help you understand the laws and rights of those seeking a restraining order. It is not intended as legal advice, as only a qualified legal team can provide legal counsel, upon understanding your case.
What are restraining orders?
A restraining order is a specific legal order or demand that a court by issue which requires the specified parties within a lawsuit do or do not do certain acts or behaviors within certain situations.
Restraining order is often a catch-all term for several areas of family law practice, including:
- Restraining orders – which is also known as a temporary restraining order or a civil restraining order
- Civil protection order
- Temporary protection order
All of these three terms have different attributes, but the general difference is that restraining orders and civil protection orders are used in civil lawsuit proceedings whereas a temporary protection order applies only in a criminal lawsuit proceeding. In this article, we are focusing on civil lawsuit issues in the State of California.
We often think of restraining orders as a court ordering one person to stay a certain amount of distance away from another person, and this is one example. But other examples can include that one or both parties can be ordered not to transfer from bank accounts or dispose of assets, or that one or both parties may not be able to step onto certain property, such as a place of residence where one or both do or used to reside, or the employment location for one party.
Restraining orders can be ordered or requested in a civil proceeding, but it must accompany a lawsuit – a person cannot obtain a restraining order against another person unless there is a lawsuit against that person.
California restraining order types
The Superior Court of California, which serves all 58 counties in California, further divides restraining orders into three types:
- Domestic violence restraining order
- Civil harassment restraining order
- Elder or dependent adult abuse restraining order
If you are seeking a restraining order in the City of San Diego, resources are available here as well as with any attorney who specializes in family law.
Domestic violence restraining order
This court order is issued in order to prevent an already-established batterer or harasser committing further acts of abuse. The batterer or harasser is typically a domestic partner, so there it is common for the batterer and the victim to live together and perhaps even have children together. A domestic violence restraining order only applies if the victim currently has or has had a close and personal relationship with the offending party.
California’s Domestic Violence Prevention Act defines abuse as any of the following:
- Causing, or attempting to cause, bodily harm, whether intentionally or recklessly
- Sexual assault
- Putting a person in a situation wherein that person reasonably assumes imminent and serious bodily injury to himself or herself and/or to another person
- Engaging in any behavior that is or could be illegal – including molesting, attacking, stalking, harassing, threatening, destroying personal property, disturbing the other party’s peace, and otherwise contacting the other party
When a court issues a restraining order, it can include any of the following situations:
- Restraining the batterer/harasser from certain actions
- Ordering the batterer/harasser to stay a certain distance from certain locations the victim frequents, such as home, work, children’s school or daycare, etc.
- Ordering the removal of batterer/harasser from the shared residence with the victim
- Limiting or removing any rights to child custody and visitation
- Ordering support of a child, such as financial, healthcare, or otherwise
- Ordering other miscellaneous situations
Civil harassment restraining order
A civil harassment restraining order is different from a domestic violence restraining order. A civil harassment restraining order does not require a necessary domestic partner relationship between the batterer/harasser and the victim.
Elder and dependent adult abuse restraining order
In this situation, the victim who seeks a restraining or protecting order must be an elder or a dependent adult who has suffered from at least one of the following situations:
- Abuse that is physical, mental, emotional, and/or financial
- Neglect, isolation, abandonment, and/or abduction
- Treatment that has caused unnecessary physical or mental pain or suffering
- Deprivation (by the caregiver) of necessary services or goods to avoid suffering
In these scenarios, the definition of an elder is a person who is 65 years or older. A dependent adult is defined as a person aged between 18-64 whose mental, physical, or other limitations prevent him or her from performing normal activities and therefore relies on another adult or caregiver.
Ex Parte restraining orders
A common term that comes up during situations involve restraining orders is that of an Ex Parte restraining order.
Ex Parte is a Latin term. Its legal meaning in U.S. law indicates that one party of a lawsuit requests the court to issue a restraining order without making the other party aware or providing the other party the opportunity to explain their side of the case in front of the court.
This scenario is much less common than we imagine. Courts most often issue a restraining order against one party only as both parties are aware of both the lawsuit and the restraining order. When issuing a restraining order, the court often uses the opportunity in front of both parties to explain the terms of the restraining order as well as the evidence that the court used to determine the decision.
In the case that a court does issue an Ex Parte restraining order, the court may still allow the other party the chance to request a hearing and present their own information, which the court could consider and then end or remove the restraining order.
Who upholds a restraining order?
Because a restraining order pertains to civil matters, it can only be enforced through civil court proceedings, not by the police.
Police can attend a site when called upon due to a breach or violation of a restraining order, but they do not have the jurisdiction to arrest an offending party or to enforce the parties to obey. Police may come out to accommodate the parties or calm down a situation, but their willingness to get involved can vary by police department and even by police.
Police have the option and legal opportunity to arrest an offending person only if the person is violating a criminal statute. They can invite the parties to make a report if the restraining order is violated. For example, if two separated spouses, in the process of divorce, have a restraining order for both that says they cannot sell any property, but one party sells the jointly-owned car, then the other party can make a formal report with the police. If the party who sold the car isn’t breaking and criminal laws, the police cannot arrest the party. If, however, one or both parties are engaged in assault or attempted assault, this is domestic violence and the police can act accordingly.
In civil, non-criminal cases that involve the violation of a restraining order, the offended party must file a request with the court, with the attempt of finding the party “in contempt” of court. The court notifies both parties of a hearing date and the party who made the complaint is to show evidence or otherwise prove the restraining order violation.
If the party can successfully prove the other party was offensive, the court may order the offending party to reimburse the other party for lawyer fees and court costs. Then the court offers the opportunity to the party to purge or be pardoned. This can be true if one party denies visitation rights, so the offending spouse simply need to provide a visitation make-up – this is a purge. If they comply with the purge, no further court action is needed. If the situation means that the court cannot offer a make-up as a way of purging or pardoning the offense, the court may subject the party to a fine and/or imprisonment.
Are restraining orders binding across State lines?
No. As laws vary from state to state and even county to county, a court-ordered restraining order is only good within the jurisdiction of the court. This means that if a San Diego County court issues a restraining order, the order is valid only as long as the parties are located in San Diego County. If both parties leave the county, whether going to a different California county, other state, or a different county, that restraining order is not binding. A party who breaks the rules laid out in a restraining order outside of the order’s jurisdiction has not violated the rules of the restraining order.
If, for some reason, a State of California court issues a restraining order, then the restraining order is in full effect across all of California. Only in rare circumstances may states or other countries recognize a restraining order outside of their own jurisdiction.
Dispelling common myths about restraining orders
Anyone can request a restraining order against any other person. False. A restraining order is a legal action that can only occur if both parties are already engaged in a lawsuit. This means a party must be suing or pressing charges against a person in order for a restraining order to become an option.
There is only one type of restraining order. False. Restraining order is often a catch-all term that describes different types of court orders for different situations. A restraining order is typically used only in the issues of civil matters, including topics that fall under family law like divorce, child custody, and spousal support.
In California, restraining orders can cover a range of topics. True. The State of California recognizes three types of restraining orders that regard domestic violence, civil disputes, and elder or dependent adult abuse differently.
A restraining order is effective immediately upon the request of the party. False. When one party requests a restraining order, the party still must indicate to the court why, and then the court has the final decision. Requesting a restraining order is not a guarantee of obtaining a restraining order.
An emergency protective order is different from a restraining order. True. An emergency protective order (EPO) is an order that the police may initiate. An emergency protective order (EPO) typically involves a criminal action, such as domestic abuse, and the police officer can request to issue an EPO at any time of day or night, as soon as a victim requests one. Whereas restraining orders involve the party petitioning the court, the police complete paperwork with the victim of a criminal action. The police then take the paperwork to the court for a judge to issue the EPO. California law mandates that all jurisdictions have a judge available 24-hours a day in order to issue EPOs. The EPO is then effective immediately for a specific amount of time.
If you are seeking help regarding a restraining order, San Diego Family Law Attorney is experienced in helping men and women across the San Diego region. Contact us today for a consultation at 619-610-7425. Once we understand your situation, we can guide you through your legal rights and options.
