Divorce comes with a lot of conflict. That probably doesn’t surprise anyone. But all too often, that conflict escalates and becomes dangerous. In these situations, restraining orders frequently come into play. They can be useful tools to keep people safe, especially in cases of abuse.
What is a restraining order?
A restraining order is a legal restriction that prevents or requires a party to refrain from performing certain actions. This often includes limiting where a person can and can’t go and with whom they can interact.
There are two types of California restraining orders: temporary (ex parte) and permanent.
Temporary:
A temporary restraining order expires when there’s a hearing to decide if it should issue a permanent order. The court most often issues temporary orders in emergencies or imminent danger.
In an urgent situation, the court doesn’t require the respondent to be present or even given notice of the hearing. These temporary orders usually last for a matter of days and at the most a matter of weeks, until something more substantial is put in place.
A judge grants emergency restraining orders when they believe there is immediate danger of harm. This happens most oftne in domestic violence situations or when a situation places a child immediate and present danger.
The court alsoawards emergency protective orders in situations involving the threat of abuse or abduction. The goal is to prevent harm from coming to a specific person or people, adult or child.
Permanent:
Permanent restraining orders require a higher burden of proof. This means the person requesting the order must demonstrate to the court the necessity of ongoing protection.
The court only orders permanent restrictions after a hearing. In these cases, the respondent must be notified and given the opportunity to tell their side of the story. Permanent restraining orders can remain in effect for up to five years.
Related Reading: How Can I Protect Myself and My Kids During a Divorce?
How do you get a protection order?
If you are in immediate danger call 911.
You must file domestic violence restraining orders with the appropriate family court. After filing the forms, they go to a judge for review.
It’s possible the court will grant an order the same day you file the paperwork. But sometimes it takes up to 48 hours for the judge to sign the order.
Regardless of whether or not you receive a temporary order, you will be assigned a hearing. This is usually scheduled a few weeks from the time you file the paperwork.
The person you file the restraining order against must also receive formal notice a restraining order has been filed against them. This formal notification is referred to as “serving” the proper documents.
The judge can’t grant any long-term orders until the documents have been properly served and the other party notified.
Related Reading: 7 Tips on Handling Conflict in Divorce
How do restraining orders affect my divorce case?
Divorce cases that involve allegations of domestic abuse complicate the matter. And every situation plays out differently. Because restraining orders have so many variables, it’s impossible to predict an outcome without knowing all the facts.
That being said, common issues often arise in divorces that involve protection orders.
- If you have filed for a protection order from your spouse, the court will likely impose restrictions on their access to the marital home as well as issuing temporary child custody and visitation orders.
- Restraining and protection orders serve a very important purpose in shielding people from dangerous situations. However, we have seen parties seek them as a way to leverage their position and to manipulate their case.
- For those falsely accused of domestic violence, dealing with a protection order posses a whole host of challenges. They face potential criminal charges, the court may evaluate custody issues, and more. It can be an uphill battle.
Because of their impact, restraining orders should not be taken lightly.
If you face divorce or custody issues and need protection, or have a restraining order against you, the first thing you should do is speak to an experienced family law attorney. Your attorney will guide you through the process and make sure to protect your rights throughout the process.
Related Reading: Fighting False Abuse Allegations