Restraining Order in California – How to Get One & Fight One

you. As the party that is protected, you are known as the protected person. Your abuser is known as the restrained person. Restraining orders are also commonly referred to as protective orders.

California law recognizes four types of protective orders. These include orders for:

• domestic violence,
• elder abuse or dependent adult abuse,
• civil harassment, and
• workplace violence.

California protective orders can remain in effect for up to five years. Some, though, will only be valid for months or even days. Examples of these types of restraining orders include:

• temporary restraining orders, and
• emergency protective orders.

A violation of a protective order is a crime per California Penal Code section 273.6 PC. The crime is charged as a misdemeanor (as opposed to a California felony or an infraction).

The offense is typically punishable by:

• imprisonment in the county jail for up to one year, and/or
• a maximum fine of $1,000.

Note that most restraining orders will prohibit your abuser from:

• possessing,
• owning, or
• purchasing a firearm.

A violation of these gun prohibitions is another crime per Penal Code 29825 PC.

In this article, our California criminal defense attorneys will answer 6 key questions:

• 1. What is a restraining order?
• 2. Are there different kinds?
  • 2.1. Domestic violence
  • 2.2. Elder or dependent adult abuse
  • 2.3. Civil harassment
  • 2.4. Workplace violence

  

  Judges may issue terms to prevent a specific person from harassing, abusing, stalking, or threatening you.

  1. What is a restraining order?

  A restraining order (sometimes called a protective order) is a court order designed to protect you from another named party. In general, California’s Code of Civil Procedure says that it can protect against:

  • harassment,
  • physical abuse,
  • stalking, or
  • threats of violence. 1

  In addition, a protective order can include terms for:

  1. personal conduct orders – that stop your abuser from committing certain acts (such as making phone calls, harassing, threatening, destroying personal property, and assaulting you).
  2. stay-away orders – to keep your abuser a certain distance away from you, or your children, work, home, or some other specified place.
  3. Residence exclusion orders – that make your abuser move out from where you live. 2

  2. Are there different kinds?

  California law recognizes four types of protective orders that protect against:

  1. domestic violence,
  2. elder or dependent adult abuse,
  3. civil harassment, and
  4. workplace violence.

  2.1. Domestic violence

  You can ask for a domestic violence protective order if you have a close relationship with your abuser. 3

  A “close relationship” means that you and your abuser are:

  • married,
  • divorced,
  • separated,
  • domestic partners,
  • dating or used to date,
  • have a child together,
  • live together, or
  • are family members or in-laws. 4

  2.2. Elder or dependent adult abuse

  You can ask for an elder abuse or dependent abuse restraining order if:

  1. you are 65 years of age or older (or are between 18 and 64 years of age with certain mental and physical disabilities), and
  2. you are a victim of abuse, neglect, physical injury, or deprivation by a caregiver. 5

  2.3. Civil harassment

  You can ask for a civil harassment restraining order if:

  1. you are being harassed, stalked, abused, or threatened by someone else, and
  2. you are not in a close relationship with your abuser (as with domestic violence restraining orders). 6

  2.4. Workplace violence

  Your employer can ask for a workplace violence restraining order to protect you from a credible threat of violence, immediate danger, or abuse at the workplace. 7

  Note that you cannot ask for this type of order. If you wish to protect yourself at work from a co-worker, you have to ask for:

  • a civil harassment protective order, or
  • a domestic violence protective order (if you are in a close relationship with your abuser).

  3. How long does a court order last?

  The maximum length of a restraining order is five years from the court date or court hearing date upon which the order was issued. 8

  Note that a temporary restraining order, or “TRO,” (see Section 6), may last only a few months. A temporary order is usually granted ex parte and prior to a permanent one. 9

  Further, an emergency protective order, or “EPO,” lasts up to five business days or seven calendar days.

  Law enforcement and police officers can issue an EPO when responding to a domestic violence call. Law enforcement officers can issue the EPO if:

  1. they believe you require immediate protection from another person, and
  2. they contact a judge and get court approval for the EPO. 10

  Note that you can always try to extend an order if:

  • you feel threatened by your abuser, and
  • the threat comes when the order is about to expire.

  4. What happens if my abuser violates the terms?

  A violation of a protective order is a crime per California Penal Code 273.6 PC. The elements include:

  1. a court lawfully issued a protective order, 11
  2. your abuser knew of it,
  3. your abuser had the ability to follow it, and
  4. your abuser willfully violated it. 12

  A violation of Penal Code 273.6 is a misdemeanor in most cases.

  The crime is punishable by:

  • imprisonment in the county jail for up to one year, and/or
  • a maximum fine of $1,000. 13

  Note though that this offense becomes a wobbler if:

  • it is a defendant’s second conviction for violating a protective order, and
  • the violation involved an act of violence. 14

  A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony.

  If charged as a felony, the offense is punishable by:

  • custody in state prison for up to three years, and/or
  • a maximum fine of $10,000.

  5. Can my abuser possess a firearm?

  Most restraining orders prohibit the restrained person from owning or possessing a firearm for as long as it is in effect. They also generally prohibit them from purchasing a gun.

  Violating these prohibitions is a crime per Penal Code 29825 PC.

  6. How do I get a restraining order?

  Go to the California courts (usually Superior Court) and complete the necessary restraining order forms. Alternatively, your family law or another attorney can complete the forms. It is deemed a type of self-help.

  In the forms, describe why you are requesting protection from another party. Once complete, file the forms with the court clerk and pay a filing fee (unless a fee waiver applies).

  A judge then reviews the forms and decides whether or not to issue a TRO. If issued, the order will usually last for 21 days. 15

  Following the issuance of the TRO, the court will determine whether or not to make it a permanent restraining order after hearing evidence on the matter. Prior to this hearing, a “notice of court hearing” must be given to your abuser via a process server, and proof of service must be filed. 16

  If the evidence shows that you warrant a protective order, the court issues one. It then remains in effect for five years. 17

  7. Can restraining orders be challenged?

  Your abuser can hire a criminal defense attorney to challenge the order at the permanent restraining order hearing. These hearings typically occur about 21 days after the TRO was issued.

  At this hearing, the defense attorney can argue to the judge why the restraining order is unnecessary. The attorney can also submit evidence and call witnesses. If the judge agrees with the defense attorney, the TRO will expire. It will not be converted into a permanent restraining order.

  Note that if the judge does impose a permanent restraining order, your abuser may still be able to appeal it to a higher court.

  8. What proof do I need for a restraining order?

  California courts typically grant temporary- or emergency restraining orders based solely on your allegations. In order to get an extended protective order, you are advised to bring the following evidence to the hearing:

  • angry or threatening voicemails, text messages, or emails by the adverse party;
  • eyewitnesses who heard or saw the adverse party being violent;
  • photographs of any wounds the adverse party inflicted; and/or
  • any police reports with descriptions of the adverse party’s violence.

  Additional Resources

  If you or someone you know is in immediate danger, call 911. Otherwise, you can find help, information and advocacy in the following places:

  • Domestic Violence Organizations in California – California Partnership to End Domestic Violence
  • California Domestic Violence Help, Programs and Statistics – DomesticShelters.org
  • National Domestic Violence Hotline
  • Resources – National Coalition Against Domestic Violence (NCADV)
  • Rape, Abuse and Incest National Network (RAINN)

  Legal References:

  1. California Code of Civil Procedure 527.6.
  2. See same.
  3. See California Courts website, domestic violence.
  4. See same.
  5. See California Courts website, elder or dependent adult abuse.
  6. See California Courts website, civil harassment.
  7. See California Courts website, workplace violence.
  8. California Code of Civil Procedure 527.6.
  9. California Code of Civil Procedure 527.6d.
  10. California Code of Civil Procedure 646.91.
  11. People v. Gonzalez (1996) 12 Cal.4th 804; and, In re Berry (1968) 68 Cal.2d 13.
  12. CALCRIM No. 2701 — Violation of Court Order, Protective Order, or Stay Away. Judicial Council of California Criminal Jury Instructions (2017 edition).
  13. California Penal Code 273.6 PC.
  14. See same.
  15. California Code of Civil Procedure 527.6f.
  16. See same.
  17. See same.

  Please note that our law firm does not handle any restraining order cases. We created this page just to provide the public with information. We suggest you contact your local bar association lawyer referral service - they can help to connect you with a law firm that handles these cases. Sorry that we could not be of further help.