A restraining order, sometimes called a protective order, is a court order that can protect someone from being physically or sexually abused, threatened, stalked, or harassed. It imposes certain behaviors and requirements on the offender with legal consequences should the offender fail to comply.
The person who obtains the restraining order is called the “protected person.” Sometimes, this can include other “protected persons” like family or household members of the protected person. The person the restraining order is against is the “restrained person.”
Types of Restraining Orders
Restraining orders in California fall under four types: a civil harassment restraining order, domestic violence restraining order, workplace violence restraining order, and elder or dependent adult abuse restraining order. The most commonly known type is the domestic violence restraining order.
General Reach of an Order
Restraining orders can generally cover three kinds of orders: personal conduct orders, stay away orders, or residence exclusion orders (commonly called “kick out” orders).
Personal conduct orders are what we generally associate with a restraining order. It orders the party to cease contact, stop forms of harassment and violence, to not destroy physical property, or disturb the peace of the protected persons.
Stay away orders mandate physical distance from important places where the protected persons, and sometimes their children go.
Kick out orders are only allowed in elder or domestic abuse cases. These order the restrained person to leave where they live until the court hearing, allowing them to leave with only clothes and personal items.
Who is Protected by a Domestic Violence Restraining Order?
You can ask for a domestic violence restraining order if someone you are closely related to or you are in a relationship with has abused you. Abuse is not limited to physical abuse.
Abuse can be verbal, emotional, and psychological. If someone feels reasonably afraid that they are about to be hurt by what a person says, that counts as abuse. Commonly, a person filing for a restraining order will be asked if there has been any violence or threats of violence in the last thirty days.
What If You Have an Order Filed Against You Wrongly?
A lawyer is not officially required to respond to a restraining order, but it’s a good idea to have one. This is especially true if you have children. A restraining order issued against you can have very serious consequences in regard to your finances, property, rights, and immigration status.
You don’t want to gamble with what can happen during a hearing. You will need help filing an answer to the order before the hearing, telling your side of the story, and you will need to attend the hearing.
California Divorce and Restraining Orders
There are four automatic restraining orders that apply during all California divorces. These orders prohibit you from:
- Moving your minor children out of state or applying for a passport for your minor children without your spouse’s consent or a court order.
- Cashing, borrowing against, cancelling, transferring, or changing the beneficiaries of any insurance policy (including life, health, automobile, and disability) held for the benefit of your spouse or your minor children.
- Selling, gifting, taking out a loan against, or concealing any real estate or items of personal property without your spouse’s consent or a court order, except “in the usual course of business or for the necessities of life”.
- Creating or modifying a nonprobate transfer (for example, a revocable trust) without your spouse’s consent or a court order.
However, a domestic violence restraining order is a different entity from these. If filed during a divorce, it can have several consequences including the inability for parties to be physically present to negotiate. It also can include the restrained party from living in the communal property.
Under California Family Code Section 4325, there is a rebuttable presumption that a person convicted of domestic violence within five years of the dissolution of the marriage will not be entitled to receive spousal support.
If you need further legal help with the dissolution of your marriage or the complications of property and custody issues that arrive in these difficult situations, contact us at 714.456.9118 or send us an email at firstname.lastname@example.org.