INFORMATION ABOUT APPLYING FOR RESTRAINING ORDERS

What is a restraining order?

There are three types of Domestic Violence restraining orders:
 
• Emergency Protective Orders (EPO's)

• issued by a judicial officer from a telephone request placed by a police officer
 
• there is no future court hearing
 
• automatically expires the earlier of 5 court days or 7 calendar days after being issued
 
• intended to last only long enough to allow the protected person to go to court for more permanent orders

 
• Temporary Restraining Orders  (TRO's)

• Emergency court orders that a judicial officer issues on an in-court, ex-parte application (i.e., with 24 hours telephone notice to the restrained party or no notice if the court excuses it)
 
• based on statements of immediate serious harm signed by the protected person under penalty of perjury
 
• Lasts approximately 3 weeks, until the date of the Order to Show Cause (OSC) hearing.
 
• May include: stay away orders, restraint on the batterer’s conduct, residence exclusion orders, child custody and visitation orders, an order preventing either party from removing the child from the State of California and other enabling orders.
 
• Enforceable when issued.  However, the police will not arrest the restrained party for violation of the order until after a proof of service has been filed or after the restrained party, having been informed of the TRO by an officer, refuses to obey the order.
 
• Restraining Orders After Hearing

• Court orders issued by a judicial officer after an Order to Show Cause (OSC) hearing (the 21-day hearing), and are sometimes referred to as “permanent orders.”
 
• The Restraining Orders after Hearing may include restraint on personal conduct, stay away orders, and residence exclusion which may remain effective for up to 3 years
 
• Upon noticed motion may be extended for 3 more years or permanently without a showing of new abuse.
 
• May include orders for custody and visitation of minor children, child support, psychological counseling, use and control of jointly owned property (only for a marriage), gun relinquishment, attorney fees, restitution and an array of enabling orders.

 
• Orders concerning custody and support of minor children are enforceable until the minor reaches 18, dies, is married or otherwise emancipated, or as extended until 19 or high school graduation, if a full time high school student who is not self supporting, whichever occurs first, or until further order of the court. (Custody orders from a DV restraining order may be replaced by future orders in a divorce or paternity proceeding.)
 
• The orders are enforceable when issued.

 
• If the restrained party was present in court, no further service is required.
 
• However, if the restrained party was not present in court on the day of the "21-day hearing," the district attorney cannot prosecute the restrained person for future violations of the order unless a proof of service has been filed establishing that the restrained person has been served with a copy of the permanent order issued by the court after the hearing. Therefore, the protected person should be sure to have a copy of the permanent order served as soon as possible after the hearing.

COURTHOUSE BASED RESTRAINING ORDER CLINICS
 
 

NOTE: PLEASE BE ADVISED THAT THIS MATERIAL IS NOT INTENDED TO PROVIDE A COMPLETE EXPLANATION OF HOW TO OBTAIN RESTRAINING ORDERS, BUT OFFER AN OVERVIEW TO HELP YOU BETTER PREPARE YOURSELF TO OBTAIN ORDERS THROUGH COURTHOUSE BASED CLINICS OR OTHER  LEGAL PROFESSIONALS. See Court Based Restraining Order Clinics: hours and locations and Low Cost or Free Legal Services Referrals