Must Ask Questions Before Filing a Restraining Order

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Divorce often brings to light significant difficulties that may be happening in a marriage, especially abuse. If you find yourself in an abusive situation, a divorce restraining order can literally save your life. The State of California takes requests for domestic violence restraining orders very seriously, as they can be used to:

• Prevent individuals from keeping a gun or ammunition.
• Prevent an abusive partner from going near you and/or others.
• Require the restrained party to obey child support and custody instructions.
• Order the restrained party to move out of a residence.

Should You Obtain a Divorce Restraining Order?

California law defines abuse as any act that puts you, your children, or another person in immediate fear of injury, as well as any act that causes harm to you or your property. If such harm exists, you can file a request for an order to keep the abuser away. Divorce-related restraining orders work differently than those in other situations, as you may file the request through your existing family law case.

A qualified family law attorney can help you fill out and file your restraining order paperwork. The forms are also available on the California Courts website. Depending on your circumstances, you may need to fill out several different forms. Here are the questions you need to consider before filing for a restraining order.

Are you asking for protection for other family or household members?

Has the person made threats against people other than you? The court may grant a restraining order that includes other “protected persons.” If you believe the person you are asking to be restrained could harm someone else related to or living with you, that information should be included in your request.

What is your relationship to the person you’re seeking protection from?

To qualify for a domestic violence restraining order, you and the person you want to restrain must be at least one of the following: 

  • Married or registered domestic partners.
  • Divorced or separated.
  • Dating or previously dated.
  • Currently or previously living together.
  • Parents together of a child.
  • Closely related, such as a parent, child, sister, brother, grandfather, grandmother, or in-law through a current marriage.

What type of order(s) are you asking for?

There are several requests you can make of the court, including personal conduct orders, stay-away orders or move-out orders. You may also ask the court to grant you the right to record communications between you and the other person, ask for sole possession of a pet, and request that the person be ordered to sell, or otherwise give up any guns or firearms in his or her possession.

Speak with an Attorney

An experienced family law attorney can help you file your request for restraining order. The court takes one day to determine if you should be granted a temporary restraining order, which is valid for up to three weeks. It then sets a date within those three weeks for a hearing on your permanent restraining order. An attorney can also help you compile evidence for that hearing, including police reports, medical records, photographs, and emails. Witnesses may also be called.

After the evidence is presented, the court will decide whether to issue a permanent restraining order. If issued, a permanent restraining order can be in effect for up to five years, at which time you may request the court to renew it. A restraining order has huge legal, financial, and emotional ramifications for the party it is issued against. It should not be taken lightly and should only be considered if the circumstances absolutely warrant it.

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