What is a restraining order?
Divorce comes with a lot of conflict. That probably doesn’t surprise anyone. But all too often, that conflict escalates and becomes dangerous. In these situations, restraining orders frequently come into play. They can be useful tools to keep people safe, especially in cases of abuse.
A restraining order is a legal restriction that prevents or requires a party to refrain from performing certain actions. This often includes limiting where a person can and can’t go and with whom they can interact.
There are two types of California restraining orders: temporary (ex parte) and permanent.
Related Reading: Building A Case Against An Abusive Spouse
A temporary restraining order expires when there’s a hearing to decide if they should issue a permanent order. The court often issues temporary orders in emergencies.
In an urgent situation, the court doesn’t require the respondent to be present or even given notice of the hearing. These temporary orders usually last for a matter of days and at the most a matter of weeks.
Emergency restraining orders are granted when the judge believes there is immediate danger of harm (domestic violence) or if a child’s welfare is in immediate and present danger.
The court awards emergency protective orders in situations involving the threat of abuse or abduction. The goal is to prevent harm from coming to one party or a child.
Related Reading: Learn More About Protection Orders
Permanent restraining orders require a higher burden of proof. This means the person requesting the order must demonstrate to the court that such protection is necessary.
The court only orders permanent restrictions after a hearing. In these cases, the respondent must be notified and given the opportunity to tell their story. Permanent restraining orders can remain in effect for up to five years.
Related Reading: How Can I Protect Myself and My Kids During a Divorce?
How do you get a restraining order?
If you are in immediate danger call 911.
Domestic violence restraining orders are filed with the appropriate family court. After filing the forms, they go to a judge for review.
It’s possible the court will grant an order the same day you file the paperwork. But sometimes it takes up to 48 hours for the judge to sign the order.
Regardless of whether or not you receive a temporary order, you will be assigned a hearing. This is usually scheduled a few weeks from the time you file the paperwork.
The person you file the restraining order against must receive formal notice that a restraining order has been filed against them. This formal notification is referred to as “serving” the proper documents. The judge can’t grant any long-term orders until the documents have been properly served and the other party notified.
Related Reading: 7 Tips on Handling Conflict in Divorce
How do restraining orders affect my divorce case?
Divorce cases that involve allegations of domestic abuse complicate the matter. And every situation plays out differently. Because restraining orders have so many variables, it’s impossible to predict an outcome without knowing all the facts.
That being said, common issues often arise in divorces that involve protection orders.
- If you have filed for a protection order from your spouse, the court will likely impose restrictions on their access to the marital home as well as temporary child custody and visitation orders.
- Restraining and protection orders serve a very important purpose in shielding people from dangerous situations. However, we have seen parties seek them as a way to leverage their position and to manipulate their case.
- For those falsely accused of domestic violence, dealing with a protection order posses a whole host of challenges. They face potential criminal charges, the court may evaluate custody issues, and more. It can be an uphill battle.
Because of their impact, restraining orders should not be taken lightly. If you are facing divorce or custody issues and need protection, or have a restraining order against you, the first thing you should do is speak to an experienced family law attorney. Your attorney will guide you through the process and make sure to protect your rights.
Related Reading: Fighting False Abuse Allegations