Your Guide to Filing & Fighting a Harassment Restraining Order California
A California harassment restraining order is an order you can seek in order to stop someone with whom you are not in a close relationship from stalking or harassing you.
Civil Harassment Restraining Orders California Overview
California code defines harassment as unlawful violence, credible threats of violence, or harassing conduct. That conduct has to actually cause a reasonable person, the one petitioning for the order, to suffer substantial emotional distress.
Civil harassment restraining orders can be asked if two parties are not related, don’t have a close relationship, and one party is worried about his or her safety because the other party harassed, stalked, made threats of violence, or sexually assaulted the other party.
When a restraining order is issued, the court will require the restrained person (the defendant) to refrain from engaging in any of the acts listed in the order. If a restraining order is violated, the defendant may face criminal charges.
There are four main categories of restraining orders in California:
- Domestic violence restraining order
- Dependent adult abuse restraining order
- Workplace violence restraining order
- Civil harassment restraining order
Most harassment cases in California are pursued under a domestic violence restraining order, or, more commonly, a civil harassment restraining order. Whether you’re looking to protect yourself through this legal avenue or you believe that a California civil harassment restraining order has been unfairly issued against you, having strong legal assistance is essential. With experience representing victims of harassment as well as an extensive criminal defense background, The Law Office of Christopher Chaney can help you achieve the desired result while protecting your rights, safety, and freedom.
Domestic Violence vs Civil Harassment Restraining Orders California
To understand your rights and options when involved in a harassment-related restraining order, it’s important to understand the difference between domestic violence restraining orders and civil harassment orders in California.
In short, civil harassment restraining orders involve non-familial relationships, while domestic violence restraining orders are issued if the defendant is closely related to the party requesting the order (the plaintiff). Domestic relationships can include a family member such as a parent, child, brother, sister, grandmother, grandfather, wife, husband, former spouse (if divorced/separated), or someone you are dating or used to date. If the relationship is that of a non-romantic roommate, neighbor, colleague, stranger, or anybody else who does not fall into the above domestic violence classification, the solution is to ask for civil harassment restraining order.
Restraining orders against parties of a domestic nature are governed by California’s Family Code, while restraining orders against strangers or non-domestic acquaintances are governed by the Code of Civil Procedure. Your attorney will help you determine which category your situation falls under and use those laws as the basis upon which to defend you.
Establishing Evidence Under California Harassment Law
The definition of civil harassment is outlined in the Code of Civil Procedure section 527.6. To establish civil harassment, there must be clear and convincing evidence that the defendant has behaved in a threatening or harassing manner toward the plaintiff.
This can include the following types of conduct:
- Assault/battery or stalking
- A credible threat of violence which would make a reasonable individual fear for their safety
- A course of conduct which is intended to harass, vex, or annoy and which has no genuine function
In order for the plaintiff to successfully request a restraining order, there must be admissible evidence that the harassment has caused reasonable psychological distress. There must also be evidence that, unless the court issues a restraining order against the accused, the plaintiff will suffer serious, lasting harm or fall victim to violence.
Additionally, any threats of violence must be credible. This means that the threat would cause a reasonable person to fear for their safety or the safety of their loved ones. The other action that might lead to a civil harassment restraining order is a “course of conduct”. This means that the defendant must have engaged in a pattern of harassing or annoying behavior.
If you are filing a restraining order against someone, our attorneys can help you argue and prove this pattern and establish any other evidence. Alternatively, if a restraining order has been issued against you, we can help defend you if the plaintiff claims a pattern of abuse or threatening behavior.
Filing Restraining Order Forms in California
Before the restraining order process in California can begin, the individual requesting the order must file the required forms in the court. On these court forms, the person seeking protection should explain why he or she is requesting a restraining order. Once this is complete, he or she submits the forms with the court clerk along with the filing fee.
If there is no credible threat of stalking or violence and the filing fee and service fee weren’t waived, you can apply for a fee waiver if you can’t afford to pay them.
If you are seeking a restraining order, your attorney can help you determine which types of forms you may need and guide you through the process of requesting and completing them. Once the forms are submitted, the judge will review them and decide whether to issue a temporary restraining order in your court case.
Civil harassment restraining orders can remain in effect for up to five years from the court hearing date upon which the order was issued.
Beginning the Restraining Order Process in California
If issued, the temporary restraining order will generally last for 21 days. Following the issuance of the TRO, the court will schedule a hearing, where they will identify whether to transition it to a permanent restraining order. It is called the permanent order because it can last up to 5 years.
Prior to this court hearing, the defendant must be served with a copy of this order by a process server or other qualified person such as an attorney, and proof of service must be filed to the court.
If a temporary restraining order has been issued against you, any orders that the court needs you to follow will be mentioned in the order. The TRO will likewise include a date for the permanent restraining order hearing. In order to fight the restraining order, the defendant must attend the court hearing in accordance with this information on the restraining order notification.
Having Several Restraining Orders at the Same Time
An individual can have several restraining orders at the same time. For example, someone could have both civil harassment restraining order and criminal protective order. One of the reasons for doing this is that a criminal protective order can expire for reasons which are beyond your control. On the other hand, a civil harassment restraining order can’t expire if there isn’t a court order ordering so made by a judge after a hearing.
Fighting a Restraining Order in California
Given that a restraining order requires you to stay away from the person filing it against you as well as other related persons, the impacts of having one issued against you can vary from losing the right to go to places you enjoy to losing the right to see your loved ones — including your kids. If you and the protected person live together, you may also be ordered to leave your home.
Additionally, if you are accused of violating a restraining order, you could face up to one year in jail and/or a fine of up to $1,000, with additional penalties applying for subsequent convictions.
Although the first offense of restraining order violation is a misdemeanor, a second conviction for the same offense can become a wobbler, especially if the second violation results from an act of violence. A wobbler is a crime that can be prosecuted either as a misdemeanor or a felony. If it is charged as a felony, this crime can be punishable by up to three years in state prison along with a fine of up to $10,000.
Due to the potentially devastating nature of these consequences of a restraining order, it’s essential to take action against the order as soon as you receive notification of it.
You do have the option to challenge the requested orders in writing, but you’ll then need to appear in court to contest the permanent restraining order. This might include revealing why the scenario isn’t serious enough to necessitate a restraining order or proving that the accusations against you are fallacious. Your attorney can help you build a strong argument for this in your favor.
What Happens at a Restraining Order Hearing in California?
If the defendant does not show up to the hearing, he or she will have no input in the event a permanent restraining order, which is valid for up to five years, is issued against them. On the other hand, if the plaintiff does not participate in the hearing, any temporary orders will end that day and no further decisions will be made on the issuance of a permanent restraining order.
At the hearing, the judge will listen to testimony from both parties and any potential witnesses, such as the arresting law enforcement officer, if applicable. Then, the judge may:
- Grant the restraining order with all requested protections;
- Grant a few of the requested protections, but not all;
- Delay the case and reschedule a new court date.
If the judge delays the case, the temporary order is in effect until the next hearing date.
Generally, when a restraining order is issued against you, there is an additional criminal case stemming from the alleged victim’s claims of abuse, harassment, or stalking. Any declarations you make at the civil restraining order hearing could be used against you in your criminal case, and successfully fighting both with a trusted California criminal law attorney is the best way to protect your freedom.
Contact us today to schedule a free consultation, where we will listen to your side of the story, inform you of your options, and begin taking action to protect your rights in all legal arenas.