A judge issues a restraining order in civil court to protect a person and her property from being threatened or harmed by another person. There are many different types of restraining orders, including those that relate to domestic violence, civil harassment, elder or dependent adult abuse and workplace violence. The person who files for a restraining order is called a petitioner. The person she seeks to be restrained is called a defendant.
Often a restraining order is denied because the judge believes the petitioner did not show evidence of a serious threat or harm by the defendant. A restraining order may also be denied because the petitioner’s statements are vague, disorganized or overreaching.
What Is a Protection Order?
A restraining order may be called a protection order or protection from abuse order. A restraining order can cover the petitioner, his family members, pets or his property. Restraining orders can differ in scope. Usually, a state will offer several options.
How Long Does a Restraining Order Last?
The length of the restraining order depends on the state. In California, a petitioner may file for an emergency protective order, a temporary restraining order, or a permanent restraining order.
An emergency protective order lasts up to seven days. A temporary restraining order can last between 20 and 25 days. A permanent restraining order usually lasts up to five years.
What Should Be in the Petition?
The petitioner must write her request in a brief, clear and chronologically organized manner. A request for a restraining order may be denied if it does not contain enough information about the petitioner, the defendant and why the petitioner is concerned. It is a good idea to state the nature and dates of past abuse and threats of abuse.
If the petitioner does not state the name or address of the defendant, the judge may deny the restraining order. This is because the court has no way to find the defendant.
Too Little Information Means No Proof
The petition must show that the defendant presents a credible threat to the petitioner's safety or the safety of her children, pets, relatives or property. Simply being upset with a defendant is not enough grounds for a restraining order.
It Pays to Be Truthful
A petitioner has to provide truthful statements, both in written form and in oral statements before the court. If the judge determines he has lied, exaggerated facts or withheld critical information, the judge may deny the restraining order.
Different Forms for Different Restraining Orders
A petitioner may have the restraining order denied if she completes the wrong form. Usually, court staff cannot tell a petitioner what form to complete. Such information constitutes legal advice. Legal advice can only be provided by an attorney.
How to Avoid Denial of the Restraining Order
A petitioner should write clear, organized and understandable answers to the questions on the petition. He should be truthful and provide any documents that show the defendant made threats or was abusive. He should provide the names and any information the court requests about witnesses.
He should also show up for court on time. If he does not show up or files an incomplete petition, the judge may deny the restraining order.
People who want to file for a restraining order should consider speaking to a family law or criminal defense attorney. The attorney can provide advice about the judge the petitioner may appear before and what the judge wants to see in the petition. A petitioner can also seek help from a domestic violence help center, shelter or legal aid agency.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.