Filing for a restraining order can feel frightening, overwhelming, and most people don’t even know where to start. Before proceeding with filing a restraining order, it is best to know what a restraining order is as well as the different types of restraining orders an individual can seek dependent on the relief that they may need.
A restraining order is a court order that an individual can request to prevent another person from threatening their safety or sense of peace. The individual seeking protection is often referred to as the “protected party” and the individual the protected party is seeking protection from is referred to as the “restrained party.”
A restraining order acts as an order of protection for the protected party by ordering that the restrained party refrain from engaging in specific conduct like physically abusing, sexually abusing, threatening, stalking, or harassing the protected party. A restraining order can further ensure safety to the protected party by ordering that the restrained party refrain from being within a certain distance of the protected party. Additionally, if the protected party and the restrained party reside in the same home, a restraining order can also require that the restrained individual be removed from the residence, and prevented from returning, while the restraining order remains in effect.
Often, people often ask “do I need a Civil Harassment Restraining Order? Or do I need a Domestic Violence Restraining Order?”. Which article will outline the differences specifically between a Civil Harassment Restraining Order and a Domestic Violence Restraining Order so you can best determine which type of restraining order is best for the type of relief you wish to seek.
If you are a victim of abuse or fear that you are in danger right now, please call 911 or seek safety.
A domestic violence restraining order is a restraining order that prevents a restrained party from causing injury, placing the protected party within imminent bodily harm, engaging in sexual abuse, or exercising coercive control over the protected party.
Although many may understand what defines physical and sexual abuse, many are unaware of what defines coerce control or that coercive control is a form of abuse that a party can seek protection from by requesting a domestic violence restraining order. Pursuant to Family Code Section 6320, coercive control includes the following types of conduct:
Not only is it important to understand the forms of abuse that lead to requesting a domestic violence restraining order, but it is also important to understand whom you can be protected from under a domestic violence restraining order.
Pursuant to Family Code Section 6211, domestic violence can be perpetrated against any of the following individuals:
If you are experiencing any of the previously discussed abuse from a person that is closely related to your, or whom you have had an intimate relationship with, a domestic violence restraining order may be the appropriate relief for you to consider or seek.
To obtain a domestic violence restraining order, you need to file a Request for Domestic Violence Restraining Order in the family law division of your local courthouse. In your Request for a Domestic Violence Restraining Order, you will name the person you want to be protected from and will be required to provide information about where the restrained party lives and works, and whether the restrained party is in possession of any weapons. You will also need to write a declaration describing the abuse that occurred and explaining why you need a domestic violence restraining order. This declaration can include the recent incident of abuse that led you to file a Request for a Domestic Violence Restraining Order and can also include any instances of past abuse that also occurred by the restrained party.
To obtain a domestic violence restraining, you need to prove to the court, by a “preponderance of the evidence” that the restrained party committed domestic violence against you.
The “preponderance of the evidence” is the lowest burden of proof that a court requires. To prove a claim by a preponderance of the evidence, a person needs to prove that it is “more likely than not” that what a person claims happened, did occur. Simply put, the court needs to find that the evidence put forth shows that there is a 51% chance that the restrained party did perpetuate domestic violence against the protected party.
Filing a Request for a Domestic Violence Restraining Order can be an emotionally overwhelming task which can become even more difficult when trying to accurately set forth evidence explaining why you need a domestic violence restraining order. Since the family law division typically hears requests for domestic violence restraining orders, hiring an experienced family law attorney can be very helpful when seeking a domestic violence restraining order. A family law attorney understands the requirements and procedures that are necessary in the family court to ensure that all your evidence is well presented so the court can fully understand and evaluate your Request for a Domestic Violence Restraining Order. Further, an experienced family law attorney can also lend compassion and empathy while working with you through a traumatic situation as you proceed with your request and can advise you in every step of the process.
A Civil Harassment Restraining Order is a restraining order that protects a person from suffering harassment such as stalking, making harassing phone calls, sending harassing messages through any means of communication, making threats, or harming an individual physically or emotionally.
Unlike a domestic violence restraining order, a Civil Harassment Restraining Order protects you against individuals that are not intimately connected to you. As such, a Civil Harassment Restraining Order protects a person against the following the individuals:
Thus, if you experience abuse from someone who is not closely related to you or whom you have not previously been intimately involved in, a Civil Harassment Restraining Order may be the appropriate type of relief for you to consider seeking.
If you can’t tell by the name, a Request for Civil Harassment Restraining Order is filed in civil court. You will need to file your Request for a Civil Harassment Restraining Order in the civil division of your local courthouse.
Like a Request for Domestic Violence Restraining Order, you will be required to fill out forms that set for the name and information of the Restrained Party and whether the restrained party has any weapons. You will also write a declaration describing the abuse that occurred and why you need a civil harassment restraining order.
To obtain a Civil Harassment Restraining Order you will need to prove, by clear and convincing evidence, that the restrained party harassed, stalked, threatened, or physically or emotionally harmed you. This is a different burden of proof than the “preponderance of the evidence” standard used in Requests for Domestic Violence Restraining Orders.
The “clear and convincing” evidentiary burden is a higher burden than a finding of the preponderance of the evidence. The clear and convincing evidence standard requires you to prove to the court that your alleged claims are highly and substantially more likely to be true than untrue. Therefore, you must set forth evidence that leaves the court with a firm belief that it is highly probable that your claims are true.
Because the clear and convincing standard is a higher burden of proof, proving your claims are and presenting adequate evidence to the court can be challenging. Retaining an experienced civil attorney can be a huge asset to you when proceeding with your request since civil harassment restraining orders are heard in the civil court.
Similar to how family law attorneys understand the necessary procedures and nuances of family court, civil attorneys are knowledgeable of the intricacies and requirements that are essential in civil court. A seasoned civil attorney can assist and counsel you when presenting evidence to the court to ensure that all your evidence is presented properly and concisely so that you can meet the necessary burden of proof.
Additionally, an experienced civil attorney can lend support and insight throughout the entire process. This is important since, like requesting a Domestic Violence Restraining Order, seeking a Civil Harassment Restraining Order can also be stressful and emotionally tolling task.
Knowledgeable Attorneys are Available to You:
As previously mentioned, working with a skilled family law attorney or civil attorney can be beneficial when seeking a domestic violence restraining order or a civil harassment restraining order. At Cage & Miles, we have a many knowledgeable and empathetic attorneys that have experience with both domestic violence restraining orders and civil harassment restraining orders. Please contact us today to schedule a free consultation and speak with an experienced attorney about your options for requesting a restraining order.