The only way to remove a restraining order in California is to lodge an appeal with the district appellate court. It's important to take action as soon as you receive the temporary restraining order since your chances of success are greater at this point than when the restraining order is made permanent. You may wish to have a lawyer file your appeal, though it isn't mandatory.
Consult an Attorney
Before you appeal the restraining order, it's important to understand what an appeal is, and what it is not. In all cases, the appeal court is only interested in two things: whether the trial judge made a mistake about the law, and whether this mistake affected the decision to place a restraining order on you. Keep in mind that an appeal doesn't grant you a new trial. Instead, a higher court will review your case carefully to look for mistakes or inconsistencies on the part of legal counsel and the previous judge.
Turn in an Appeal
Turn in an appeal form with the appropriate appellate court by the legal deadline, which is usually 30 days after the court enters the judgment. There are six courts of appeal in California, one for each of the six judicial districts: San Francisco, Los Angeles, Sacramento, San Diego, Fresno and San Jose. You are the petitioner and the other person involved is the respondent. A panel of three judges will examine the transcripts and evidence in your case to determine whether or not the first trial was conducted properly, and whether you have legal grounds for an appeal.
Have a Legal Reason
State your reasons for appealing the restraining order. It's up to you to prove that either a law was not upheld during your trial, evidence was not sufficiently examined or the court made an error of law or fact. No new evidence or testimony will be admitted. Do not contact the protected person during this process. The findings and orders from the trial still stand unless the appellate court finds grounds for dismissing the restraining order.
- Take action as soon as you receive notice of a temporary restraining order being placed against you. Your opportunity to get the order dismissed is greater at this point than once the permanent order is in place.
- Seriously consider getting a lawyer to help you file an appeal.
Brooke Julia has been a writer since 2009. Her work has been featured in regional magazines, including "She" and "Hagerstown Magazine," as well as national magazines, including "Pregnancy & Newborn" and "Fit Pregnancy."