Restraining Orders (Part 4 of 4)

When the ex parte papers are the first papers served on respondent in the action, service must be effected in a manner authorized for initial service of process. In any event, temporary restraining orders must be served by personal service.

A neutral process server or law enforcement officer (below) should be used. Per Ca Civ Pro § 414.10, the papers cannot validly be served by a "party" to the action; and for purposes of domestic violence TROs, "party" includes any nonparty named as a protected person in the order.

Responsive Declaration

The restrained party's responsive declaration must be served on the applicant party at least two days before the hearing (otherwise, the applicant may be entitled to a continuance to prepare to meet the responsive allegations). [Ca Fam § 243(g)]

The Order To Show Cause Hearing

Nothing in the Code requires an appearance by the responding party as a prerequisite to granting the requested orders (i.e., making the ex parte orders "permanent"). If the responding party (personally or through counsel) fails to appear at the hearing (or to file an answer/responsive declaration), the requested relief may be entered by default.

On the other hand, the Code expressly states that "when the matter first comes up for hearing, the applicant must be ready to proceed." [Ca Fam § 243(a)]

The court may take testimony of the parties or make its decision solely on the basis of the papers filed by the parties.

****Sometimes, if a criminal case is pending or an investigation regarding the incident is pending you have to be very careful about proceeding forward on the merits. A continuance may be in your best interest overall. As your testimony can be used in other proceedings as against you should this come to pass. Also if you move forward thinking no problem I will handle this without a big to do, you may end up with a three year order which has major consequences. Seeking help after the hearing is much more expensive and much more problematic.

Findings And Order Of The Court

The Court may issue an order only if the judicial officer finds that:

• Reasonable grounds have been asserted to believe there is an immediate and present danger of domestic violence, child abuse, child abduction, stalking (as defined in Ca Penal § 646.9), or elder or dependent adult abuse (as defined in Ca Wel & Inst § 15610.07); and
• An emergency protective order is necessary to prevent the occurrence or reoccurrence of domestic violence, child abuse, child abduction, stalking, or elder or dependent adult abuse. [Ca Fam § 6251(a) & (b); Ca Penal § 646.91(d)]
  

Service And Filing Of The Order

The orders must be personally served to be effective.

To ensure effective statewide enforcement, domestic violence protective orders (including modifications, extensions and terminations thereof) must be registered with the State Department of Justice (DOJ) through the California Law Enforcement Telecommunications System (CLETS). The DOJ is required to maintain a "Domestic Violence Restraining Order System" and to make all information concerning such restraining orders (whether or not served upon the respondent) available to court clerks and law enforcement personnel through computer access. Electronic transmission of the pertinent information is the county's responsibility. [See Ca Fam §§ 6380(a),(e) & (f), 6382]

Duration Of Orders

Domestic violence restraining orders are deemed to be of three years' duration if the expiration date is not stated on the face of the order form. [Ca Fam § 6345(c)] Understand a violation of this order can result in a criminal case i.e. violation of a protective order. Therefore, be very concern and very cautious by maintaining the condit9ions of these orders.

Fees & Costs:

Attorney Fees: Please feel free to discuss this with one of the attorneys at McNamara & McNamara, but generally with a minimum retainer fee at an hourly rate. The retainer will varying depending on the size and complexity of the case.

Costs: There are no filing fees in domestic violence cases. Other fees which may or not be necessary in your particular case are: motion fees, fees for service of process, deposition fees.