FAQ – Restraining Orders

What is a restraining order?

A restraining order is a court order that can protect you from being physically abused, threatened, stalked or harassed. A civil restraining order also can give you custody of your children, order visitation and child support, provide you with court orders regarding your property and pets, and, depending on the circumstances, require the abuser to move out of your home. A civil restraining order is a good idea even if you have a criminal protective order, because it can last longer and give you and your family different kinds of protection.

Who can get a restraining order?

You can ask for a restraining order if a person has abused you, and you are related or have a close relationship with that person. Close relationships include people who are dating or used to date; are married, divorced or separated; and registered domestic partners. Examples of relatives include a parent, child, brother, sister, grandmother, grandfather, or in-law. You have to be more involved than just roommates. See Restraining Orders 101 for more detailed information.

How old do I need to be to get a restraining order?

You  need to be at least 12 years old to get a restraining order.

I think I need a restraining order against my boyfriend but he goes to the same school. How can a restraining order keep him away?

You can get a restraining order even if you and your boyfriend attend the same school. Restraining orders usually require the abuser to say at least 100 yards away but the judge might have to make some adjustments in this case.

How long does it take to get a restraining order? Can I get one today?

A judge has two business days to decide whether to grant your request for protection. The process begins when you fill out your paperwork to ask for a restraining order and file it with the court. If the judge grants your request, you will get a temporary restraining order that lasts for up to three weeks, until your hearing in court. It takes about a month to get a “permanent” restraining order.

This order is not valid until the abuser has been served, which means that someone must personally hand the papers to the abuser so that the abuser knows about the hearing. When you go to the hearing, the judge will decide whether to make the restraining order last longer (up to five years).

If police are called to an incident, they can issue an Emergency Protective Order, which will provide a few days of protection so that you can file for the temporary restraining order with the court. See Restraining Orders 101 for more detailed information.

They will still need to call a judge for approval. The abuser will also need to be served with an emergency protective order (also called an EPO). The police will generally do this when the abuser is in custody, but if the abuser has fled the scene it can be more difficult to get an EPO.

What does  it mean to “press charges”? Do I have to press charges to get a restraining order?

You do not have to press charges to ask for a restraining order. “Pressing charges”, simply means that you are cooperating with the police and the district attorney as they investigate your case.

If you – or someone else – calls the police and reports that the abuser has been hurting you, the police will take a report and then the district attorney decides whether the abuser is charged with a crime and can do so even if you don’t want them to. In that sense, you don’t have control over whether charges are pressed.

If someone has abused you, you can ask for a restraining order to protect yourself even if you have never called the police or if you called the police but the district attorney’s office decided not to file charges against the abuser.

If the district attorney does bring charges against the abuser, the court should give you a Criminal Protective Order (CPO), which is a different kind of restraining order than the one you request in civil court. Please see Restraining Orders 101 for more details on the different types of restraining orders.

How much does getting a restraining order cost?

You do not have to pay any court fees to get a restraining order. FVLC does not charge for our legal services, although we do accept donations.

Do I have to go to court in order to get a restraining order?

You do have to go to court to file a request for a domestic violence restraining order. You will also have to attend a hearing, in person, where the other person will also be present, in order for your request to be granted.

Where do I go to file for a restraining order?

In order to file for a domestic violence restraining order you must turn in your paperwork to Alameda Superior Court. Information about their services can be found  here.

Do I need an attorney to file a restraining order?

You do not need an attorney to file a restraining order, and many people do so without the help of an attorney. However, if you are unsure how the process works, it is a good idea to at least have an attorney help you complete your paperwork.

What if I don’t qualify for or can’t get a restraining order?

If you don’t qualify for a restraining order there may be other types of emergency orders that can help you. You should consult a legal advocate, an attorney or the self-help center. We can also help you with some safety planning, to talk though some options that will keep you safe from future incidents. Learn more at Restraining Orders 101.

Can I serve my abuser with the restraining order?

No. You must find someone over the age of 18 who is not involved in the case to serve the abuser. This could be a friend, family member, or coworker. We can help you decide who might be the best person to perform this. For more information, see Restraining Orders 101.

My abuser lives with me. How can a restraining order keep him away?

If the court grants you a restraining order against someone you live with you can ask the court to grant you a “kick-out order”. This means that the judge will order the abuser to move.

I have a restraining order from another country/state. Is it still good in California or do I need a new one?

Yes, but you should register your restraining order with the court although you are not required to do so. A valid order is enforceable whether or not it has been registered.

What if I have a previous history of abuse and filed for a restraining order before, but did not pursue it, and now, want to file again? Is it more difficult to get another restraining order later?

It is not unusual for survivors of domestic violence to have filed a restraining order and then decide they do not want it. Just because you filed a restraining order in the past does mean you can not file again as long as you meet the criteria for a restraining order.

COURT

Will I have to go to court?

Yes, you have to appear in court on the date the clerk gives you. If you do not, your case will end.

Will I see my abuser in court?

Yes, if the abuser comes to court. But he/she does not have the right to talk to you. If you are afraid, tell the court officer. The court officer will make sure that you are safe.

CHILDREN

Can my children be protected by a restraining order?

Yes, in most cases children-in-common can be protected by a civil restraining order, as well as children from a previous relationship and other household members.

What will happen to my children?

The judge can determine which parent the children should stay with. When there are children involved, the judge will require both parents to talk to a family court mediator. Because you are asking for a restraining order, you are not required to have an appointment at the same time as your abuser. The judge can also order the abuser not to take the children out of California, or the county you live, without your written agreement or another court order.