What Is A Restraining Order & How To Get One

Nobody should have to live in constant fear of another person. Yet physical or emotional abuse is not uncommon, and many people are often left unsure of how to protect themselves. Fortunately, there are legal processes that can protect you from having to deal with harassment, abuse, or being stalked. If you are fearful for your or your loved ones’ safety, then it is essential that you know how to get a restraining order, which is the first legal step in protecting your safety.

A restraining order(RO) is a legal order that a protected person can file against the restrained person in order to prevent them from taking harmful actions towards the protected person. The protected person may also name other people such as their children or relatives to be protected as well.

Before filing a restraining order, it is important to determine what you want the restrained person to be prohibited from doing. There are three types of restrictions that may be placed on a restrained person. A person may file for all three types of restrictions, depending on the severity of the abusive relationship.

• Personal conduct orders are restraining orders that forbid the restrained person from committing acts against the protected person such as:
  • Contacting, calling, or sending any type of digital communication
  • Stalking or harassing
  • Threatening
  • Sexual assault
  • Physical attacks
  • Destroying the property of the protected person(s)
  • Disturbing the peace of the person(s)
• Stay-away orders are restraining orders that prevent the restrained person from entering within a specified physical distance of the protected person. The protected area can include places such as:
  • The home and workplace of the protected person
  • The protected person’s vehicle
  • The protected person’s child’s daycare facility
  • Other essential areas that the protected person frequents
• Residence exclusion orders, also known as “kick-out” or “move-out” orders, order the restrained person to move away from the place of residence of the protected person. A residence exclusion order can only be ordered if the restrained person lives with the protected person(s).

How to Get a Restraining Order(RO)

Before filing a restraining order in California, you need to determine which type of RO you need. The type of restraining order depends on the nature of the relationship with the restrained person. You must select one of the four of the following types of restraining orders when filing. 

•  A domestic abuse RO, which protects people who are living with or closely related to the abuser such as a spouse, parent, sibling, grandparent, or someone who the protected person is dating or has children with
• A civil harassment RO, which protects people that the victim is not closely related to (an aunt or cousin) and other non-relatives such as friends, coworkers, or any other person.
• An elder or dependent abuse RO, which protects adults who are dependent on the person committing abuse
• A workplace violence RO, which is a restraining order that an employer can file in order to protect an employee from harm. It is important to note that only the employer can file this type of restraining order. The employee who is the victim may file a civil harassment RO.

In order to get a restraining order in California, you or your restraining order attorney must complete and file the legal court documents to begin the RO process. When you file the paperwork you should bring legal identification and any paperwork related to the restraining order such as past filings or paperwork associated with an emergency protective order. 

Once the documents are complete, you must file the paperwork with the courthouse. In Santa Clara County, Domestic violence restraining orders are free, as well as civil harassment restraining orders if an act of violence has occurred. However, if no acts of violence have occurred, then there will be a fee for filing the civil harassment restraining order. If your income is low, you may want to bring pay stubs so that you may qualify for a fee waiver.

Once the paperwork is filed, a temporary restraining order may be granted until the date of the court hearing. During the court hearing, the judge will review the evidence and determine if further protection is necessary. The judge may grant protection for up to five years, at which point the protected person may file for a new restraining order. 

There are incidences, however, in which the protected person is in danger and needs immediate protection. If you face an immediate threat to your safety, you may call the police to help remove the restrained person from your vicinity. The police may then file an emergency protective order which lasts for five to seven days, allowing you or your lawyer the time to file a temporary restraining order at the courthouse.

If you live in San Jose or the surrounding Bay Area and need help acquiring a domestic violence restraining order, contact one of our experienced attorneys today. We offer free 30 minute consultations. Set yours up here.