Criminal Defense Q&A: When Can I File a Restraining Order Against Someone?
Question:
My ex-husband is hateful toward my boyfriend and me and sends horrid texts and emails. Now, because he is mad he cannot live with me–despite having contributed money for me to move–he has said he made good on threats to write to the agencies I get funding for my son from, telling them I use the money for drugs instead of caring for my child. (Question has been edited for clarity.)
Answer:
Harassment as you’ve described can be grounds for a family law or civil law restraining order. You can obtain a temporary restraining order from either a family law court or a civil law court. See Family Code §§6300, 6320; Civil Procedure Code §527.6(a)(1).
Whichever court you petition, the process is the same. Once you submit your petition, the Court will decide if you’ve suffered harassment. Family Code §6320(a), Code of Civil Procedure §527.6(a)(1). If so, the Court will issue a temporary restraining order that prohibits the restrained person from contacting you. The temporary restraining order will last, generally, for 3 weeks, at which time you’ll have to come back to court for a hearing to determine whether to extend or terminate the restraining order. See Family Code §6320(a), Code of Civil Procedure §527.6(f).
At this hearing, the Court will want to hear evidence of your relationship with the restrained person as well as the recent harassment and/or abuse that you have experienced. In family court, the judge’s primary concern is the risk that the restrained person poses to your safety. See Family Code §6340(a). In civil court, the judge is looking only to see that harassment occurred. See Code of Civil Procedure §527.6(i). Testimony from people who have witnessed the restrained person’s behavior (which includes you), as well as messages and e-mails from the restrained person himself are persuasive.
Continue reading criminal defense attorney Michael J. Ocampo’s answer at Avvo: What has to occur before it is a good idea to file a restraining order against someone?
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
