What Should I Do if I Receive a Restraining Order?

What is the difference between a Civil Harassment Restraining Order and a Domestic Violence Restraining Order?

The California Code of Civil Procedure (CCP) defines ‘harassment’ as a course of conduct that involves “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct that . . . seriously alarms, annoys, or harasses the person.” (CCP 527.6). This course of conduct can take many forms including, but not limited to, stalking, making harassing phone calls, sending messages through email or interoffice mail, and other similar behavior. The parties need not be related or have any prior relation for a Civil Harassment Order to be filed.

Domestic Violence Restraining Orders apply in cases where there is an incident or claim of abuse, threat of abuse, stalking, or sexual assault. There must be reasonable proof of a past act or acts of abuse. The parties must have a current or former relationship such as spousal, cohabitants, dated, have a child together or by second degree relation (e.g., in-law). California Family Code 6320 provides a longer list of actions that fall under the category of abuse or acts of abuse.

In practice, judges generally grant a vast majority of Domestic Violence Restraining orders while Civil Harassment Restraining Orders are often denied by judges following the hearing.

What are the consequences if I violate a Restraining Order?

Penalties for violating a restraining order can lead to some harsh consequences in California, including criminal charges.

In cases of violating a Civil Harassment Restraining Order, you can be charged under Section 166 of the California Penal Code as a misdemeanor, which is punishable for up to one year in jail and a fine of up to $1,000.

In cases of violating a Domestic Violence Restraining Order, California Penal Code 273.6 also imposes potential penalties of no more than one year in jail and/or a fine of no more than $1000. A conviction of PC 273.6 can result in deportation for non-citizens.

I was just served a Restraining Order, what should I do?

If you have been served with a Restraining Order, read it carefully as violating the terms of the order can lead to fines or possible jail time. You will also need to appear in court on the specified date. You must receive the restraining order 5 (or more) days prior to the hearing. If you are served with fewer than 5 days then you may request an extension in order to have a fair opportunity to prepare for the hearing.

For more information on the steps to take to respond to a filed restraining order against you, be sure to download and fill in the forms at the California Courts website.

Does the Restraining Order apply outside of California?

Yes! The restraining order remains valid and applicable across all states.

What is the difference between a Temporary Restraining Order and a Full Restraining Order?

A Temporary Restraining Order (TRO) may be granted pending a hearing. A hearing is required to be scheduled no more than 21 days from the filing of the order. The courts may, in some circumstances, extend it to 25 days with good cause. At the hearing, the judge will determine if the order should be extended on not.

A Full Restraining Order (FRO) cannot be granted until after the hearing by a judge.

I was never properly served the paperwork. Do I still have to worry about the Restraining Order?

Upon being served a Temporary Restraining Order and the set hearing, you should directly address the issue rather than attempt to avoid it. If you fail to attend the hearing because you believe you were not properly served, the other party will likely attend and claim that you were served properly. In such cases, you will lose the hearing by default and could potentially have a restraining order placed on you can last up to 5 years.

In the event you require more time due to improper or late service (less than 5 days prior to hearing), you can request additional time to prepare for the hearing.

If you never got the actual paperwork but you found out about the restraining order, you can find the forms to respond here. You can review the entire restraining order packet and Riverside County specific here for domestic violence or here for civil harassment.

I filed a Restraining Order but have since changed my mind, can I just cancel it?

No! Once you a file a restraining order it cannot just be cancelled. This can only be done by a judge.

Don’t I have the First Amendment right to say what I want to people?

Yes, but there can be limitations on the first amendment. The right to free speech does not allow you to repeatedly call people hundreds of times a day, or threaten violence or engage in harassing conduct. On the other hand, nasty, tasteless, or mean postings and expressions generally will not warrant a restraining order (unless conducing in a harassing way toward another).

Does getting a Restraining Order mean that I might go to jail?

No. Receiving of a Restraining Order does entail any immediate jail or prison time. However, violation of the terms of the restraining order (e.g., being in possession of a firearm or contacting the protected person) will lead to arrest, jail, and prosecution.

My hearing is scheduled soon and I’m worried I won’t be ready for court. Can I ask for more time?

Yes! Court will grant a continuance to allow you more time to prepare for the hearing. Note: If you have already been awarded a continuance once, you may not get another.

Do I lose my Second Amendment right to own a firearm if I have a restraining order against me?

Yes. Although it might seem ridiculous that after this summary court process and short hearing you lose your right to own a gun, it is the law in California. These cases have been litigated extensively by dedicated 2nd Amendment advocates but the firearm prohibitionists have prevailed. You may think this law is crazy and want to stand up for your rights and thumb you nose at the nanny-state nuts who take your constitutional rights, but please don’t – you will end up in jail.

Under California Penal Code section 30305, it is a FELONY to own or possess a firearm if you have an active restraining order. Under California Penal Code section 29800 , it is a FELONY to have ammunition if there is an active restraining order.

What will happen if I don’t get rid of my guns after the hearing?

Family Code section 6389 (‘Firearm Restriction’) makes it “unlawful for a person subject to a temporary restraining order to own, possess, purchase, or receive any firearms during the protective order.” The California Department of Justice will conduct a firearm search through the Automated Firearms Systam (AFS) or through agents working for their 'Armed and Prohibited' program. In the event that you have an active restraining order and a registered firearm, then they will visit your home to inquire about the firearm. If you do not cooperate, they can get a search warrant for your home. Being in possession of a firearm while having an active restraining order is a FELONY (California Penal Code sectio 29825). The same applies to being found in possession of any ammunition.

What if I gave away or sold a firearm that was registered to me, but myself and the buyer did not do the paperwork to transfer the gun?

In the event that you gave away or sold a firearm registered to you but did not complete the needed paperwork to transfer gun ownership, you will need to rectify this as soon as possible. You can do this by going to a licensed gun dealer with the buyer and completing the necessary paperwork.

Aside from having to stay away from a person, are there other consequences to the Restraining Order that I should know about?

Restraining orders can lead to more than just ordering you to stay away or not communicate with certain individuals. As discussed above, you lose your right to own or possess a firearm after a restraining order is issued.

Domestic violence restraining orders can result in you being forced to leave your family home, loss of custody or contact with children if they are part of the order, and even monetary support may be included in the order. A restraining order can be EXTREMELY costly.

In cases of a Domestic Violence Restraining Order, you will be required to complete a one-year (52 week) anger management courses or fulfill other similar services.

Finally, restraining orders are public record and will appear on some background checks which can have significant consequences to personal reputation and employment.

The children are listed on the order, but I would never harm them. What can I do?

Losing your children can be one of the most terrible aspects of this process. The fact of the matter is that the judge makes the Temporary Restraining Order decision based on a one-sided story, usually described in a few short paragraphs. If the children were present to witness domestic violence this will be enough to issue the temporary order.

At the hearing on the permanent order, you will be allowed to present your side of the story. The judge may be hesitant to issue an order that keeps you from your children if they were not actually threatened or placed in danger.

I have witnesses! How do I present my witnesses in the case?

The most important kind of witnesses are people who may have been present when the attack supposedly occurred – they may help you show that the petitioner is lying or that any violence was only in self-defense. You may also produce witnesses showing the petitioner’s violent character (for example, she attacked you or others in the past). You may also find witnesses to show that she is lying. Whatever witnesses you use, don’t be petty – the judge will hold it against you if you waste time or talk about irrelevant things. For example, I’ve seen multiple cases where the responded argued that the hitting was justified because the petitioner had cheated – this does not impress the judge.

You will have an opportunity to provide a summary of the witnesses’ testimony on the response paperwork that should be provided to you when you are served with the temporary order.

Next, make sure the witnesses attend court to testify before the judge to help evidence your case.

My wife and I work in the same building, how I can avoid violating my Restraining Order?

A judge will determine at the hearing the terms and conditions of the order. In most cases, an order can be issued that allows necessary interaction between the individuals such as providing care for the children or fulfilling work related obligations.

My wife is calling me and coming over to my apartment. Am I violating the restraining order by talking to her or visiting with her?

If the restraining order is no longer needed or wanted, you really should go through the courts. Technically it may not be a violation if she initiates contact and comes to your place, but a police officer may not be interested in that ‘technicality’ if she calls the cops on you to report that visit – just because you would beat the case doesn’t mean you won’t be arrested and spend a couple days in jail.

Furthermore, after she initiates contact a few times you will be tempted to call her and visit her. Each phone call or visit that you initiate is a violation. Please don’t do it. Go through the court to get the restraining order dismissed before you continue with your relationship.