Sunday, May 10, 2015

Restraining Orders California Giude-Lines

This page tells you about:
  1. What is domestic violence?
  2. How to get an Emergency Protective Order
  3. How to get a Domestic Violence Restraining Order
  4. Fees and fee waivers
  5. How to fill out and file the restraining order forms
  6. Other things you should know about domestic violence restraining orders
Get help in person with your restraining order! Visit the Court's Restraining Order Help Center.
  1. What is Domestic Violence? 

    Domestic Violence can be physical violence, a verbal threat of physical violence or a pattern of harassing behavior.

    The victim and the abuser must have a close relationship (married, divorced, separated, dating or used to date, live together or used to live together as a couple), or be related (parent, child, brother, sister, grandmother, grandfather, in-laws).

    Domestic violence is also called “abuse”. "Abuse" means to hurt, throw things, pull hair, follow, harass, sexually assault, murder, break into the victim’s home or work, destroy or steal the victim’s property, intimidate or to threaten to do any of these things. Abuse can be spoken, written, emotional or physical.

    Domestic violence is always bad for children. It is never OK, in any family.
  2. How to get an Emergency Protective Order

    If you are in danger, call 911! 

    If you are in danger, ask a law enforcement officer to ask for an Emergency Protective Order from a Judge. You can ask for an Emergency Protective Order any time of the day or night. But, an Emergency Protective Order only lasts for 5 court days or 7 calendar days.

    To get a restraining order that lasts longer, you must file papers in Family Court. If you need emergency shelter, help with your restraining order, or support in court, call one of the phone numbers below  to get help from domestic violence resources in your community:
     
  3. How to get a Domestic Violence Restraining Order 

    To get a Domestic Violence Restraining Order, you must fill out Domestic Violence Prevention forms. You can get them from:
    • The Restraining Order Help Center (free) Located on the lower level of the Family Courthouse in downtown San Jose
    • The Clerk’s Office at the Family Courthouse in downtown San Jose (free)
    • Online at the Judicial Council State Forms  page (free) (Choose "Domestic Violence" from the dropdown menu. Forms are available in English, Chinese, Korean, Japanese, Vietnamese and Spanish but the forms must be filled out in English)
    • Bookstores and print shops that have legal forms
    For help filling out the forms:
    • Contact one of the agencies listed above. Most agencies will send a support person to go to court with you. That person can also write up your restraining order after the court hearing. or
    • Visit the Restraining Order Help Center
    • You can also call a lawyer for legal advice or to represent you in court by looking in the telephone book or calling Santa Clara County Bar Association  Lawyer Referral.
    For additional information, read the Judicial Council information sheets:
    For more information on domestic violence, go to the California Self-Help DV Restraining Orders page .
    If you have children together but were never married, file a parentage action at the same time so you can ask for more permanent custody and visitation orders.
  4. Fees and fee waivers 

    There are no filing fees for Domestic Violence Prevention restraining orders.

    There are filing fees for Civil Harassment restraining orders unless there is violence, so be sure to clearly describe any violent acts you have suffered. There are no filing fees for Civil Harassment restraining orders to protect against violence.

    A filing fee is required to start or respond to a divorce, or to start a parentage action, but you may apply for a fee waiver if you have very low income. Click here for more information about fees and fee waivers. 
  5. How to fill out and file the Restraining Order forms

    Note: if you want your address to be confidential, please contact the State website Safe at Home  for information about getting a safe confidential mailing address to use on your court forms. Note - there are helpful video instructions for some of these forms. Click on the video links below.

    Fill out these forms to ask for a restraining order. The forms must be filled out neatly in blue or black ink:
    If you have minor children with the person you want protection from, you also MUST fill out:
    If you want child support, you also need to fill out:
    *Read Which Financial Form-FL-155 or FL-150? (Form DV-570 ) to find out which form is right for you. See A/V instructions for FL-150 video icon and FL-155 video icon.
    If you want spousal support, you also need to fill out:
    You will also need to fill out:
    If you would like the sheriff to serve your forms at no cost, you also need to fill out:  
    The clerk of the Court will give a copy of the papers to the Sheriff's Office if you have requested that they serve the person you want protection from. You must be able to provide the Sheriff's Office with an address (home or work) in Santa Clara County for the person you want restrained.
    If you don't have an address in this County but have an address in another County, submit the forms anyway so the Judge can approve free service by the Sheriff, even in the other county. Then when you pick up your forms you can deliver them to the Sheriff in the county where the person to be restrained lives or works so that county's Sheriff can serve the person.
    If you need to file a parentage action (if you have children with the other party but were never married to them) review the parentage pages on this website.
    Take your completed forms to the Court Specialist at the Family Court. A judge will look at your forms within 24 hours and let you know if you will get a temporary restraining order or not.
    Check on the status of your forms online! After your forms are filed, you can go to the Court Specialist Ex parte web page to see whether they are ready to pick up. When you pick your forms up from the Court Specialist, check to see if the judge made any changes to the orders you asked for.

    You will have a court hearing in about three weeks so the judge can decide if the orders will continue for up to five years. Make sure to come to this court hearing.
    The Court will keep the original for the court file and give you five certified copies. If you need more copies you can make them yourself.
    What to do with your copies:
    • Keep one copy with you, always. You may need to show it to the police.
    • Keep another copy in a safe place.
    • Give a copy to anyone else protected by the order.
    • Leave copies at the places where the restrained person is ordered not to go (your school, work, etc.).
    • Give a copy to the security officers in your apartment and office buildings.
    The Court sends your restraining order to get entered into a special computer system at the California Department of Justice. That way, police officers across the state can find out about your order.

    Look at Form DV-109  for the date and time of your court hearing. You must go to your hearing to get an order that can last up to 5 years. The order you have now only lasts for about 3 weeks.

    Serve the Restraining Order forms

    Someone who is over 18 and not protected by the restraining order must personally serve (give) a copy of the restraining order forms to the other party at least 5 days before the Court hearing.

    The forms can be served by someone you know, a process server, or the Sheriff. The server must also give the other party a blank Response to Request for Domestic Violence Restraining Order (Form DV-120 ) for them to fill out. See A/V instructions for DV-120 video icon. The Sheriff will serve the forms free. (See above)

    A "process server" is a business you pay to deliver court forms. Look in the Yellow Pages of your phone book, under "Process Serving."

    File your Proof of Service 

    The Proof of Service (In Person) (Form DV-200 ) shows the judge and police that the restrained person got a copy of the order. Make two copies of the completed Proof of Service. Take the original and 2 copies to the Clerk’s Office before your hearing. The clerk will keep the original and give you back the copies stamped "Filed." Bring a copy to your hearing.

    Keep 1 copy with you and another in a safe place in case you need to show it to the police.

    If the restrained person wasn't served...
    The restrained person must be served before the hearing. If the restrained person wasn't served, fill out a Request to Continue Court Hearing and Reissue Temporary Restraining Order (Form DV-115 ) and a Notice of New Hearing and Order on Reissuance (Form DV-116 ) to ask the judge for a new hearing date. Do this before or at your hearing. (If you wait until after the hearing, you have to start from the beginning.)

    If the judge signs this order, the restraining order will last until the new hearing date.
    • File the signed Request to Continue Court Hearing and Reissue Temporary Restraining Order (Form DV-115 ) and Notice of New Hearing and Order on Reissuance (Form DV-116 ) with the clerk.
    • Attach it to your other court papers and get the restrained person served with all the restraining order papers and the reissuance.
    • Bring a copy to your hearing.
    After serving the orders, the server fills out and signs the Proof of Service (In Person) (Form DV-200 ) and gives it to you. Make sure the Proof of Service shows the Reissuance form was served along with the DV forms you filed. File your Proof of Service.
    For more information, read How to Ask for a new Hearing Date (Form DV-115-INFO ).
    What do I do next? Get ready for your hearing. 

    Be prepared:
    • Bring all other papers that you have not already filed that support your case. Bring at least three copies: one for yourself, one for the judge, and one for the person you want to have restrained.
    • You can bring a friend or relative for support, but that person must not talk for you in court. If you are representing yourself your support person may sit with you, even during a hearing.
    • You can bring a witness but the judge may not have time to talk to them. If you bring a written statement of what the witness saw or heard make sure it is written under oath. You must file and serve witness statements at the same time as you file your Request for Order (Form DV-100 ) and Temporary Restraining Order (Form DV-110 ).
    • Do not bring your children.
    Don't miss your hearing! If you miss it, you will have to start from the beginning.

    Get to court 30 minutes early:
    • Find the courtroom.
    • If you are afraid of the restrained person, tell the officer. They can have a deputy walk you to and from your car if you want.
    • Watch the other cases so you will know what to do. You can also come to watch hearings before your court date to learn about the process.
    • When your name is called, go to the front of the courtroom.
    • Your hearing may last just a few minutes, or up to one-half hour.
    What if I don't speak English?

    The court will give you an interpreter if you speak Spanish or Vietnamese. If you speak another language, check with the Clerk's Office to see if they can get an interpreter who speaks your language.

    Do not ask a child to interpret for you.

    No one who is listed on your papers can interpret for you. 

    What if I have a disability that affects my ability to appear in court?

    If you have a disability that you feel affects your ability to appear in court, contact the clerk at least 1 week before the hearing. For more help, read Persons With Disabilities: Q&A on Rule of Court 989.3 . 

    What's the best way to prepare?

    Make a list of the orders you want and practice saying them.

    If you get nervous at the hearing, just read from your list. Use that list to see if the judge has made every order you asked for. The judge may ask questions:
    • Tell the truth. Speak slowly. You can read from your list.
    • The restrained person or his or her lawyer may also ask you questions.
    • Do not interrupt the judge or the restrained person,
    • Give complete answers.
    • If you don't understand, say "I don't understand."
    • If you do not agree with what the restrained person says in court, wait until he or she finishes talking. Then tell the judge.
    • Speak only to the judge unless it is your turn to ask questions.
    The judge will decide:
    • At the end of the hearing, the judge will say what the orders are. Important! Have the Restraining Order After Hearing (Form DV-130 ) written up and filed the day of the Court hearing so there is no gap in your protection!
    • Make sure your Restraining Order After Hearing says what the judge ordered and that you understand it. Sometimes Court staff fill out the form for you or you may be referred to the Family Law Facilitator. If not, fill it out yourself. For more help with the forms you'll need after the hearing, visit the Restraining Order Help Center.
    • If the judge makes the orders, the judge will sign your Restraining Order After Hearing (Form DV-130 ). Take it to the clerk to file it. The clerk will give you five "filed-stamped" copies free.
    The judge may "continue" your case. This means you have to come back another day. The judge can do this if:
    • Your hearing is taking longer than planned.
    • The judge wants more information.
    • The restrained person needs time to get a lawyer or write up and file an Answer.
    If your case is continued...
    • Fill out a Restraining Order After Hearing (Form DV-130 ) with the new Court date
    • The judge will sign the form and give you a new hearing date.
    • Take it to the clerk, file it, and ask for five "filed-stamped" copies.
    • Now your orders will last until the new hearing date.
    • Bring all your papers back to court at the next hearing.
    What about child custody or visitation?

    If you need child custody or visitation orders, the judge will send you to speak with a mediator. Mediation helps parents agree on a plan for custody and visitation that is best for the children. Visit the Family Court Services (FCS) page to learn more about mediation.

    In Domestic Violence cases, the mediator can meet with parents separately if you ask for that. You can bring a support person with you to mediation.
    What happens after the hearing?
    • If the judge makes the orders, go to the clerk and file Form DV-130 , Restraining Order After Hearing.
    • If the restrained person was at the hearing, you can have him or her served with a copy of Form DV-130  by mail. Ask the server to complete a Proof of Service by Mail (Form DV-250 ) and give it to you.
    • If the restrained person was served but was not at the hearing, and the judge's orders are the same as the temporary order, you can have him or her served with a copy of Form DV-130  by mail. Ask the server to complete a Proof of Service by Mail (Form DV-250 ) and give it to you. The Sheriff's Office may be able to serve these orders as well. (See above)
    • If the restrained person was served and was not at the hearing, and the judge's orders are different from the temporary order, you must have someone serve Form DV-130  in person, not by mail. Ask the server to complete a Proof of Service (In Person) (Form DV-200 ) and give it to you.
    Remember, you can NEVER serve the orders yourself.

    Take your Proof of Service (Form DV-200  or Form DV-250 ) to the clerk and file it. Keep a filed copy.
  6. Other things you should know

    What to do with your Restraining Order
    Keep a copy of the Order with you at all times and a copy at home, in your car, at your work, and at your child's school and/or daycare provider(s).

    If the abuse caused you to lose money
    You can ask for restitution (to pay for medical bills, lost wages, property damage, legal fees for an attorney, and reimbursement for cost of shelter services) in your Request for Order.

    Custody/Visitation
    Custody and visitation orders made under the Domestic Violence Protection Act (DVPA) are temporary. If you are married to the other parent, you must file for a Dissolution (Divorce) or Legal Separation to get more permanent custody orders

    If you did not go to the court hearing and the judge made a restraining order against you, you can still ask the court to see your children. Visit the Self-Help Center for help.

    File a Request for Order for visitation: The Court can make an exception to restraining orders for peaceful contact for court ordered visitation, or it can order supervised visitation. Also, check the court file to see if the judge ordered you to Family Court Services for mediation. Visit the Self-Help Center for help.

    Child Support:
    If you want child support, you must fill out an Income and Expense Declaration or Simplified Financial Statement. File it with your DVPA papers and have it served with a blank form to the other party.

    Mediation and Domestic Violence
    If there is a history of domestic violence, you can ask to be placed in a Mediation session separate from the abuser. You will have to sign a Written Declaration stating that there has been violence. You must also say on your Family Court Services' application form that you want to meet with the mediator at separate times.

    What if I Don't Have a Green Card?
    You can still get a restraining order. The people at the courthouse do not work for the INS (Immigration and Naturalization Service). If you are worried about deportation, talk to an immigration lawyer. The local bar association lawyer referral service  may be helpful.
    What is the difference between a Domestic Violence (DVPA) and a Criminal Protective Order?
    Domestic Violence Orders and Civil Restraining Orders are not the same. Click to read the information flyer CR 6000  to learn how they are different. Note - the flyer refers to Domestic Violence Restraining Orders as Civil Restraining Orders.

    What if I have a Domestic Violence Restraining Order Criminal Protective Order?
    There is important information you need to know if you have both a Domestic Violence Restraining Order and a Criminal Protective Order. Click to read the flyer comparing Domestic Violence Restraining Orders and Criminal Protective Orders . Note - the flyer refers to Domestic Violence Restraining Orders as Civil Restraining Orders. 

http://www.scscourt.org/
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