How To File For A Restraining Order
For you to file a restraining order, the perpetrator must have committed at least two acts of stalking, harassment or other threatening behavior. While it can be helpful to have two police reports, it is not necessary by state law.
Victim Services can help you complete the paperwork to file for a restraining order. You’ll contact the Magistrate’s Office in the county where the perpetrator resides to find out how to get the necessary paperwork. There is no fee to obtain paperwork or file the request.
What Happens After You File
Duration of a Restraining Order
What Is A Civil Protection Order
A civil protection order is a court order issued by a judge, lasting up to one year, designed to provide you with long-term protection from an abuser. The CPO orders your abuser to stop abusing and/or threatening you, to stay away from you, not to contact you in any way, and provide other forms of relief that you need to be safe.
How Can I Get An Ex Parte Restraining Order
You can ask the court for a Restraining Order. You can also ask the court to prohibit weapons and to order the other party/ies to surrender weapons to the police or sheriff. A court may grant an Immediate Restraining Order the same day as the request is made, even without notice to the other party/ies, if necessary to provide safety.
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The Police Power When Enforcing Restraining Orders
Because restraining orders are legal documents and carry the weight of a court behind them, violations can result in substantial fines or even jail time. The District Attorney in charge of the case will have some discretion in handling the matter. The DA may not pursue the case if there is insubstantial evidence that you violated the order, or the DA will move forward with the charges if the violation is clearer.
Violating a restraining order is considered contempt of court, meaning you can be punished civilly, even if the underlying matter behind the restraining order was a criminal matter. You could receive a 5-day jail sentence or fine for each violation. However, the threshold for proving up a contempt of court charge is much higher than what is required to receive the restraining order, and you will be allowed to have an attorney present to fight for you in these matters.
Filing A Restraining Order In Florida
Florida law provides for five different orders of protection against violent conduct. The five different orders of protection are, 1) domestic violence 2) repeat violence 3) dating violence 4) sexual violence and 5) stalking. An order of protection is more commonly known as a restraining order. A restraining order is a type of injunction.
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Getting An Order Of Protection
There are many steps you can take to protect your safety during or after an abusive relationship. You may wish to apply for a Civil Protection Order . If the judge agrees with your petition, a Temporary Protection Order will be immediately issued. A TPO is valid up to 14 days and is used to allow time for the abuser to be served before the CPO hearing. In emergency situations and outside normal court hours an Emergency Temporary Protection Order can be issued. This order last for 5 days and must be initiated through a process between the police officer and an advocate from Survivors and Advocates for Empowerment . You may also have the option of applying for an Extreme Risk Protection Order when you believe there is sufficient information to indicate that a respondent poses a significant danger of causing bodily injury to him or herself or others by having possession of firearms or ammunition.
What Does A Restraining Order Do
In general restraining orders can include:
For the person to be restrained, having a restraining order against him or her can have very serious consequences:
- He or she will not be able to go to certain places or to do certain things.
- He or she might have to move out of his or her home.
- It may affect his or her ability to see his or her children.
- He or she will generally not be able to own a gun.
- It may affect his or her immigration status if he or she is trying to get a green card or a visa.
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Contesting Or Responding To A Request To Renew A Restraining Order
The protected person can make a request to the court to extend a restraining order prior to the time in which it expires. You can agree or disagree with the request by filling out and filing with the court a form called Response to Request to Renew Restraining Order .
Have someone at least 18 years old serve the protected person by mail with a copy of the Response. They must complete a Proof of Service by Mail . Bring this form with you to the hearing.
The court will consider your Response at the hearing. You must continue to obey the current restraining order until the hearing. If you do not come to the hearing, the court may renew the order against you for up to 5 years or permanently.
You may wish to talk to a lawyer about your rights.
Filing The Forms And Getting A Hearing
NOTICE OF REQUEST FOR TEMPORARY RESTRAINING ORDER:
If you need immediate protection, you can ask the court for a Temporary Restraining Order. Before filing the forms, you must give written or telephonic “notice” to the restrained person of when and where you will be seeking a Temporary Restraining Order, or give the judge a good reason why you could not give notice. The form that you use for this is called “Declaration Re: Notice ” and is included in the forms above. The Domestic Violence Assistance Program Office can further explain the process.
FILE THE FORMS IN THE FAMILY LAW DIVISION CLERKS OFFICE:
After completing the forms, you will file them in the Family Law Division Clerks Office on the 7th floor of the Lamoreaux Justice Center, no later than 4:00pm, Monday Friday.
FILING FEE:
There is no fee to file these documents.
TEMPORARY RESTRAINING ORDER:
The judge generally rules on your request for a Temporary Restraining Order on the same day you make the request. If the judge grants your request, check it carefully to see what the orders are. The judge might not order everything you requested. The court will set a hearing date regardless of whether Temporary Restraining Orders were granted or not.
KEEP A CERTIFIED COPY OF THE RESTRAINING ORDER WITH YOU AT ALL TIMES in case you need to show it to a Law Enforcement Officer.
HEARING DATE:
For more information, read “Get Ready for the Court Hearing” .
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What If I Could Not Serve The Restraining Order In Time For The Court Hearing
You should still appear at the court hearing and tell the court that you were unable to get the paperwork served. The court will continue the hearing and extend the temporary restraining order to the continuation date. You will need to complete the following forms, DV115 Request to Continue Court Hearing and Reissue Temporary Restraining Order and the DV116 Notice of New Hearing and Order on Reissuance the day of the hearing and submit to the courtroom.
The DV-115-INFO form How To Ask For A New Hearing Date has helpful information and can be found at the California Courts Website.
How To Get A Restraining Order
Restraining orders are filed at the clerk of the court. All solicitor are heard by the circuit court. There is no cost to file a restraining order. The party filing the injunction is known as the petitioner. The petitioner must determine what type of injunction should be requested.
The relationship of the parties typically dictates what type of petition is filed. For more information on the different types of Florida Restraining Orders, click on this link: Floridas Four Orders of Protection Against Violence. This is an older article by the Florida Bar, but is still a good resource on Florida domestic violence law. This article describes who can file an injunction, what type of allegations are required and the standard of proof for a final injunction.
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What Happens If You File A Restraining Order Against Oliver
In court, unless Oliver presents a successful defense, Suzannes claims may be deemed legitimate and result in his possible incarceration. If you have been served with a civil restraining order or a domestic violence restraining order, and need to file a response, contact A Peoples Choice for legal help.
Evidence To Support An Application
The court may have regard to any evidence it may have heard during a criminal trial in determining whether a restraining order is required. However, further evidence may be required especially where the defendant has been acquitted . See further guidance in the section Offering no evidence and making an application.
In assisting the court, both the prosecution and defence may lead, as further evidence, any evidence that would be admissible in proceedings for a civil injunction under section 3 of the Protection from Harassment Act 1997 PHA 1997). This will allow prosecutors to lead evidence over and above the facts before the court together with evidence that may not have been admissible in the criminal proceedings. Examples of such evidence include:
- live evidence not given at trial
- previous convictions
- previous injunctions or non molestation orders
- hearsay evidence and
- material contained in crime reports, domestic violence incident reports or other intelligence reports.
Prosecutors should follow the rules of civil evidence in order to adduce further evidence to enable the court to determine whether to make a restraining order.
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Who Can File A Domestic Violence Restraining Order
You may apply for a Domestic Violence Restraining Order if a person has abused you or threatened to abuse you AND you have one of the following relationships with that person:
- You are related within the second degree of affinity or consanguinity. This means: mother or mother-in-law, father or father-in-law, child or stepchild or legally adopted child, grandparent or grandparent-in-law, grandchild or grandchild-in-law, sister or sister-in-law, brother or brother-in-law, stepparent, daughter-in-law or son-in-law. The in-law must be through a current marriage.
IMPORTANT: You can also ask that other family or household members be protected by the Restraining Order.
The person seeking protection is called the protected person. The person you want protection from is called the restrained person.
If there is a divorce, legal separation, or paternity case on file with the Superior Court of California, County of Orange, you do not need to open a Domestic Violence case. You should file your request for restraining orders in the related family law case.
If you do not qualify for a Domestic Violence Restraining Order, there are other kinds of orders. You can ask for:
Step 3 Serve Your Papers On The Restrained Person
“Serving” means that the other side must get copies of any paper you file with the court. In service a third person is the one who actually delivers the paperwork to the other side. The person who does this is called the server or process server.
The server must:
- Be 18 or older, and
- Not be protected by the orders.
Until the other side has been properly “served,” the judge cannot make any permanent orders. Remember, so far, you have a temporary restraining order, which runs out the day of your court hearing unless the judge extends it or gives you a permanent restraining order.
In domestic violence cases, a law enforcement officer may be able to serve your restraining order papers for you. If they do, they will do it for free.
You can also hire a process server, which is a business you pay to deliver court forms. Search for “process serving” online or look in the Yellow Pages of your phone book.
For more help with service, read What Is Proof of Personal Service? . And read the section on Service of Process.
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What Is The Difference Between A Family Court And A Criminal Court
A family court is very different from a criminal court. A family court will view you and your partner as equals. It becomes your word against your partners, unless you have police reports and documents showing criminal charges against your partner. The family court must include those documents when making a judgment about your case.
If you decide to go to family court, work with an experienced attorney to prepare your case. Collect police reports, arrest records, and documents showing charges filed against your partner. If you have pictures of injuries, hospital records, or pictures of property damage, include them. Tell your attorney about any witnesses to the abuse so the witnesses can provide statements about what they saw.
Get Ready For Your Hearing
This section will tell you how to get ready for your hearing. Read Get Ready for the Restraining Order Court Hearing for more information.
Be prepared:
- Take documents that help prove the abuse. Take 2 copies of all documents and filed forms, including the Proof of Service. Some of the documents that can help your case may be:
- Damaged property
- A threatening letter, email or telephone messages.
Do not miss your hearing!If you miss it, the restraining orders will end and you will have to start from the beginning.
Get there 30 minutes early:
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What If I Have Been Served With Restraining Order Paperwork
Read the Temporary Order carefully. If you disobey the order, you can go to jail or be fined. If you are ordered to move out, then take your clothes and belongings you will need until the court date and move out. You CANNOT own, possess, or have a gun or firearm while the order is in effect. If you have a gun now, you have to turn it in to the police or sell it to a gun dealer. Read How Do I Turn In or Sell My Firearms? .
Go to the court hearing on the restraining order. The hearing date is on the Notice of Court Hearing . If you do not go to court, the judge can make the restraining order without hearing your side of the story. And the order can last up to 3 years. If you want to tell your side of the story, file and serve the Response BEFORE your court date. Even if you do not file a Response, GO TO YOUR HEARING. You do not need a lawyer to respond to a restraining order. BUT it is a good idea to have a lawyer. Having a restraining order issued against you can have very serious consequences, so by having a lawyer you can protect your rights as best as possible.
IMPORTANT! If you also have a criminal case related to the abuse or violence in this case, it is very important you talk to a lawyer. Anything you say or write in the domestic violence restraining order case can be used against you in your criminal case.