I Was Just Served with a Temporary Restraining Order—What Do I Do Now?

You were approached by someone—a process server or a sheriff—and are handed a stack of paperwork saying that you are now restrained from contacting or approaching your spouse or significant other.

A Domestic Violence Temporary Restraining Order.

“What happened?” you ask yourself as you leaf through the paperwork. Perhaps your spouse was abusive towards you but called the police and told them that you were being abusive, leading to your arrest. Maybe you have been estranged from your spouse for years and the paperwork contains allegations that are over a decade old with no way to verify whether they are true. Suppose the paperwork contains a set of facts that is completely made up and fabricated.

“How did this happen? And what do I do now?”

The purpose of this blog post is to help those who were issued a Domestic Violence Temporary Restraining Order understand the following:

• how abuse allegations are defined
• how to follow—as well as potential consequences of not following—the temporary orders
• helpful tips on navigating the impending litigation and building a defense

What is Abuse?

In California, the types of abuse that give rise to the protection that a Domestic Violence Temporary Restraining Order (“DVTRO”) offers are varied, diverse, and far-reaching. Although physically causing (or attempting to cause) someone bodily injury and sexual assault are certainly forms of abuse that qualify for a DVTRO, placing someone in reasonable apprehension of imminent serious bodily injury is another form of abuse that qualifies as well.

Beyond those, a host of other types of abuse will also suffice, some requiring further explanation. However, the more common forms of abuse include but are not limited to:

• stalking
• threats
• credible impersonation/false personation
• harassing
• excessive telephone calls or other forms of electronic communication
• destruction of personal property
• disturbance of the peace 

How Do These Temporary Orders Work?

The DVTRO you are served—and all of the orders contained therein—become effective the moment you are personally served with the paperwork. Contained within the DVTRO are various provisions that you must follow because while a DVTRO is a civil/family law order, a violation of a DVTRO is a criminal matter. Some common restraints are as follows:

• physically coming within 100 yards of the protected party’s person, place of employment, vehicle, or school
• contacting the protected party directly through any means, electronic or otherwise
• indirectly contacting the protected party, such as attempting to deliver a message to the protected party through use of a third-party messenger.
• If you are living with the protected party, you may be removed from the residence by your local sheriff.
• If you own any firearms or ammunition, you will be ordered to turn them in, sell them or store them. If you are required to carry a firearm as part of your employment, then the Court may grant an exemption to this order.
• If you have children and the protected party listed them as additional protected parties under the DVTRO, then the Court has the discretion to order a temporary visitation schedule pending the hearing to decide whether to make the temporary order permanent. This order may include limited parenting time with the children, no overnights, and a requirement that a supervisor—professional or nonprofessional—be present for the visits.

How to Navigate DVTRO Orders

It is important to remember that the orders contained within a granted DVTRO are very real and, as mentioned above, carry potentially significant consequences if violated. Do not contact the protected party or use anyone else to contact them—even if the protected party reaches out and contacts you first. The DVTRO only prevents the Restrained Party from contacting the Protected Party. So, while a Restrained Party’s contacting the Protected Party will violate the DVTRO, a Protected Party’s contacting the Restrained Party will not.

If the DVTRO contains an Order for Removal from Residence, it is important to remain calm and civil while the police offer you an opportunity to gather essential items and vacate the property.

If the DVTRO contains a visitation schedule for minor children, it is important to exercise as much visitation as the order allows and to not bring up the DVTRO in any way to the minor children.

How to Defend Against a DVTRO

The Court will schedule a hearing in which it will decide whether to make the Temporary Restraining Order permanent, meaning lasting up to five years. This hearing typically occurs approximately three weeks from the date on which the DVTRO is granted.

This does not leave much time to prepare for the hearing, but because the orders contain restrictions on your constitutional rights that were granted without affording you the opportunity to present your side of the story, the hearings must take place in a timely fashion.

Nonetheless, it is important to remember that the Court will allow a first-time continuance of the hearing if the Restraining Party requests it. A continuance of the hearing will extend the orders contained in the DVTRO up until the continued hearing date, so they will remain in full force and effect. This way, the restrained party is afforded more time to retain an attorney and strategize on a defense without prejudicing the protected party. Some helpful tools and questions to keep in mind:

• The facts in support of a protected party’s DVTRO are just as important as the absence of facts: were there any witnesses? Were the police called? Was anyone arrested? Is Child Welfare Services involved? Pointing to the absence of facts can be a powerful defense.
• Take special note of the protected party’s behavior since the alleged dates of abuse. Is there evidence that you and the protected party have spent time together since the alleged abuse occurred? Is there electronic correspondence that would indicate that the alleged abuse did not happen or that something entirely different happened?
• Discovery: while there is no absolute right to discovery under the Domestic Violence Prevention Act, if the hearing is continued significantly into the future, it may be beneficial to take the protected party’s deposition or the deposition of third-party witnesses, issue written discovery, subpoenas, and more.

If you are served with a DVTRO, it is of the utmost importance to act quickly and retain a skilled, competent domestic violence attorney as soon as possible. Cage & Miles is equipped to review your case and determine the best strategy for moving forward. Please do not hesitate to call our offices today to schedule a consultation with one of our experienced California divorce attorneys.