Restraining orders are civil court orders which require that the person named in them cease a certain action. They are not the same as a Criminal Protective order, which is sought by the police to protect victims of crimes and witnesses. There are several forms of civil restraining orders in California.
Domestic Violence Restraining Orders -
Domestic violence restraining orders, commonly known as DVROs, protect you from violence or threats of violence from someone with whom you have a close relationship. This includes a spouse, domestic partner or significant others whether current or former, roommates, and close family members (parents, grandparents, in-laws, and siblings.)
DVROs can protect you if you have been subject to violence or the threat of violence, harassment or stalking. You can also seek one on behalf of your minor child if they are a victim. The domestic violence must have been recent and there must be a reasonable concern that it will happen again.
The DVRO can have many restrictions but the most important is that it requires the abuser to stay away from you and your children and to not have any contact with you. If the order is violated, the abuser is subject to arrest and/or pay an fine. It is important to note that DVROs do not end a marriage or establish parentage of children.
The standard of proof for a DVRO is lower than that for a civil restraining order. The procedures are also slightly different and DVROs are sought in Family Court, which is a separate division of the civil court from where other restraining orders are sought.
Civil Harassment Restraining Orders -
Civil Restraining Orders are the most common form of restraining orders, are available in a broader array of circumstances than DVROs, but are subject to a higher standard of proof.
To get a Civil Harassment Restraining Order, you must show that you suffered:
Assault, battery or stalking or
a credible threat of violence that would make a reasonable person afraid for their safety or
an ongoing course of harassment which serves no legitimate purpose and was designed to distress you
For all three categories, you must show that you were actually afraid or suffered some emotional distress from these actions and that this distress was reasonable under the circumstances.
The burden of proof for a Civil Harassment Restraining Order is “clear and convincing” evidence. This means your word is generally not enough to show that the harassment took place. You must show some other proof but this can take many forms - copies of texts; emails; phone records, or testimony of other witnesses.
Like the DVRO, the Civil Harassment Restraining Order will be issued by the court and will require the person it is issued against to stay away from you, to stop contacting you and to cease any other harassing actions. Anyone who violates such an order is also subject to arrest, a fine, or both.
Workplace Violence Restraining Orders -
Workplace Violence Restraining Orders are far less common than DVROs or Civil Harassment Restraining Orders because they are sought by an employer to protect its employees and workplace. Individuals cannot seek these restraining orders for themselves. However, they are a powerful tool in that cover the employee who is being harassed or subject to violence, the employee’s family members, the employee’s co-workers, and the employer’s other places of business.
Employers can seek these orders when an individual has engaged in violence against its employees, or has made credible threats of violence against them and there is a concern that the violence will happen in the workplace. Again, the burden of proof is high, and the employer must show that the actions were not otherwise protected speech or otherwise protected, such as being a legitimate part of a labor bargaining process.
Gun Violence Restraining Orders (“Red Flag” Orders) -
Gun Violence Restraining Orders (“GVROs”), or “Red Flag” orders, are relatively new. California was the first state to implement them. Pursuant to California Penal Code Section 18100, “(a) gun violence restraining order is an order, in writing, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition.”
These orders are sought by family members or the police when they believe that a person is a threat to themselves or others. GVROs may be obtained on an “ex parte” basis, that is, without notice to the restrained person, when the family or law enforcement believe both that the person to be restrained is a threat and they can show that less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances. If an order is obtained ex parte, the person restrained must be given a full hearing within 21 days to determine if a further GVRO is appropriate. If the court finds that one is, it will be renewed for a year.
Obviously, GVROs raise due process concerns, but thus far, have been upheld by courts that have considered them. Since they have only existed since 2014, they are still a relatively new area of law that is rapidly developing.
Do you Need a Lawyer to Obtain or Defend Against a Restraining Order
The short answer is yes. Many victims who should have obtained an order fail to do so because they did not fill out the forms correctly or did not include the necessary details in their declarations. Likewise, many people have restraining orders issued against them because they failed to appear to fight it or failed to understand how to fight it effectively. If you need to obtain a restraining order, or someone has filed for one against you, please contact us for help. We have many different levels of representation available in these matters.