How to Obtain a Restraining Order in California

Getting a restraining order is no easy process.

There’s a reason why it’s not easy:  a restraining order severely limits the ability of a person to move around as they choose.

Courts are naturally going to be cautious about issuing these orders so that they don’t go around issuing mistaken orders restraining people from going certain places or being around certain people.

On the other hand, restraining orders exist because sometimes a person is so threatening or harassing that it takes a legal mechanism to keep them at a distance.



Steps to Obtain a Restraining Order


You can get a restraining order by applying with your local Superior court.

There are two kinds of restraining orders – temporary restraining orders, and permanent restraining orders. A temporary restraining order (or “TRO”) provides immediate, emergency relief on a short-term basis from a threatening or violent individual.

In addition, there are both Domestic Violence Restraining Orders and Civil Harassment Restraining Orders. A Domestic Violence restraining order involves two parties who are related or who are or were in a relationship. A civil harassment restraining order is obtained against a non-relative such as a co-worker, former colleague or a stalker. The steps below detail how to obtain a Domestic Violence restraining order, but the steps are similar for a Civil Harassment restraining order (though the application documents are different).

Because a TRO is temporary and can be obtained without a full-blown hearing, it is much easier to secure, while a permanent restraining order requires a full-fledged hearing and notice to the person being restrained. A permanent restraining order is much more difficult to obtain because by its nature it is long-lasting and restricts a person’s movement for up to three years.

In order to obtain a restraining order, you need to fill out three forms:

In the application, you can ask for the court to make a variety of different orders, including for the restrained person to stay away a certain distance, or to stay away from the protected person’s home or workplace, to refrain from contacting the protected person, or for the court to order the restrained person to move out (if the two parties live together).

If you have children that you also want protected, then you need to also fill out two additional forms:

After you’ve filled out these forms, you should also check with the clerk for your local county and find out if there are any local county forms which need to be filled out as well.

You will also want to submit a declaration from the person who is seeking the restraining order which lays out exactly how the person to be restrained has abused that person.  Abuse could include:

  • intentionally or recklessly causing or attempting to cause bodily injury,
  • sexual assault; or
  • placing a person in “reasonable apprehension” of imminent serious bodily injury to that person or another.



A good deal of thought and detail should go into this declaration, or else the judge reviewing the application will immediately reject the application. If the judge doesn’t believe a full temporary restraining order is necessary, the judge may issue an order for the restrained person to stay a certain distance away from the protected person’s home or work.


Submit Forms and Declaration to Court Clerk

After you have filled out the forms and drafted the declaration, the next step is to submit them to the court clerk at your local Superior court. Usually the way it works (depending upon local county procedure) is the clerk will give the forms to the judge. The judge will look at the application documents the same afternoon and decide whether to grant a temporary restraining order, and if so, to what extent.

By early afternoon, the judge should have decided whether to grant the TRO.  If all of the forms have been filled out correctly and you have alleged sufficient facts demonstrating that there is a likelihood of harm, then the court will probably grant the request.

Once the court grants the TRO, you’re not done yet. The next step is to serve the papers on the restrained person. After you pick up the papers from the clerk’s office, bring a copy to the Sheriff’s office so that a Sheriff’s Deputy can serve the papers on the person. Again, this procedure may vary depending on the county so be sure to check with your local county clerk.

Many Sheriff’s offices are overworked and understaffed so serving a TRO may not be top priority. You can always pay a process server to delivery the papers so that the restrained person has notice.

In addition to the above forms, you will need to serve these additional forms on the restrained party:


Hearing on Permanent Restraining Order

The court will schedule a hearing about 3 weeks later at which the person seeking a restraining order will have to present evidence demonstrating they are entitled to a permanent restraining order.

The standard is pretty high when it comes to Domestic Violence restraining orders, so if the court is not inclined to grant the restraining order at the hearing, the court may grant a mutual stay-away order.  This is simply an agreement on the record that the parties will stay away from one another.  It doesn’t have as much force as a restraining order, but it’s something that the parties usually honor and just stay away from each other.

You should come prepared to the hearing on the Permanent Restraining Order to put on evidence demonstrating that a long-term restraining order is necessary. The court will hear from witnesses or the applicant at the hearing.

Have more questions about how to obtain a temporary restraining order? Meet with us for a 60-minute consultation for $225 today — either in person or over the phone — or check out our 20-minute Video explaining Step-by-Step How to Fill Out the Temporary Restraining Order paperwork with the court. 

 

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Photo credit: Flickr/Tim.Simpson

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  • http://www.calawreport.com John Corcoran, Esq.

    Hi Al:

    In general, a person who applies for a restraining order must establish that they reasonably believe they are going to suffer imminent serious bodily injury. It’s difficult to comment on your case without knowing more facts about the particular situation, but you said the person felt or perceived your emails to be threatening. If that person feels threatened to such an extent that they believe you may seriously injure them, then they have a good chance of getting the restraining order. Hope that makes sense.

  • Dave

    you’re an ass hole

  • Tatung

    Sometimes it doesn’t make any sense at all because both individuals has some type of scolding or argument then it escalated into a court orders. Judge sometimes made mistakes on deciding who the victims is or did something wrongly.

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