WHAT YOU NEED TO KNOW ABOUT RESTRAINING ORDERS
If you are suffering from domestic violence, you may be feeling helpless, but the law in San Jose, California has tools that can provide you protection from your abuser. One of these tools is the domestic violence restraining order.
WHAT IS A DOMESTIC VIOLENCE RESTRAINING ORDER?
A domestic violence restraining order is a court order that helps protect people who have been abused or who are threatened with abuse. Abuse does not necessarily need to be physical; it can also be spoken, written, or emotional.
If you are in an abusive situation in San Jose, you can file papers at the Family Justice Center Courthouse for a domestic violence restraining order. A restraining order can accomplish many of different things. It can order an abusive person to:
- Not contact you, your children, your relatives, or others who live with you;
- Turn in any firearms they own;
- Move out of the shared home;
- Follow child custody and visitation orders;
- Pay child support; and
- Pay spousal support.
TYPES OF DOMESTIC VIOLENCE RESTRAINING ORDERS IN SAN JOSE
- Emergency Protective Order. If a police officer responds to a 911 call and believes that you are in danger, the officer can ask a judge to issue an Emergency Protective Order. The Emergency Protective Order is only valid for five court dates or seven calendar days. After which you must file forms in Family Court for a more permanent restraining order.
- Temporary Restraining Order. A temporary restraining order (TRO) is issued by the court to protect you before a full hearing can be held. You do not need to notify the abuser before you file for a TRO. The TRO will be in place until a full hearing takes place.
- Domestic Violence Restraining Order.A domestic violence restraining order is a permanent order issued after a full hearing that can last up to five years or longer if extended.
- “Kick-Out” or Exclusive Possession Order. An exclusive possession order forbids the abuser from entering the shared home.
WHEN CAN YOU GET A DOMESTIC VIOLENCE RESTRAINING ORDER?
You can ask the court for a domestic violence restraining order in San Jose if:
- A person has abused you or threatened abuse, and
- You either have a close relationship to that person (married, divorced, separated, dating, used to date) or you are related (parent, child, brother, sister, grandmother, grandfather, or in-law).
HOW LONG DOES IT TAKE TO GET A RESTRAINING ORDER?
A judge will decide whether to grant a temporary restraining order either the same day or next business day. The temporary restraining order is only in place until a hearing for a permanent restraining order is held. At the court date, the judge will decide whether to continue or cancel the order. The court hearing typically takes place about three weeks after you file the forms.
WHAT SHOULD YOU BRING TO THE COURT HEARING?
At the court hearing, you will present evidence proving the abuse. Some examples of evidence you could bring include: photos; medical records; police reports; damaged property; or threatening letters, emails, texts, phone messages, or social media posts.
You can bring a friend or family member for emotional support, but that person will not be permitted to talk for you in court. You can also bring witnesses who may or may not be allowed to speak during the hearing. You can have your witness prepare a written statement of what they saw and heard. Any witness statements must be filed and served at the same time that you file the restraining order.
HOW LONG DOES THE RESTRAINING ORDER LAST?
The first order that the judge grants is a temporary order that only lasts until your next court date. If the judge decides to continue the order, it could last up to five years and longer if extended.
Child custody, visitation, and support orders can last longer. They usually end when the child turns 18 years old.
HOW MUCH DOES A RESTRAINING ORDER COST?
It is free to file a domestic violence restraining order with the court in San Jose. If you hire an attorney to represent you through the process, you will have to pay attorney fees.
HOW DO YOU SERVE A RESTRAINING ORDER?
Restraining orders must be served by someone who is at least 18 years old. You or anyone else protected by the order cannot serve the order. The sheriff or marshal will do it for free, but you must ask. You can also hire a process server to serve the papers.
WHAT IF THE PERSON DOES NOT FOLLOW THE RESTRAINING ORDER?
If the restrained person breaks the restraining order, you should call the police. The restrained person can be arrested and charged with a crime if they do not follow the order.
DO YOU NEED AN ATTORNEY TO GET RESTRAINING ORDERS IN SAN JOSE?
An attorney can help you present the facts to the judge in the most compelling manner. Additionally, there are many forms that you must complete and procedures you must follow, and an attorney can help you navigate this process efficiently and ensure that no mistakes are made.
If you decide to proceed without an attorney, the Family Justice Center Courthouse in downtown San Jose has a Restraining Order Help Center that you can visit in person or reach by phone at (408) 534-5600.
The Moreno Family Law Firm can help you obtain a domestic violence restraining order in San Jose. Contact the experienced family law attorneys at Moreno Family Law Firm today at (408) 266-9011 to schedule your consultation.