Oakland Restraining Order Lawyers

One question we often receive from individuals who need assistance filing a restraining order in Oakland is, “How long do restraining orders last?” Like most things in the legal field, it depends on the specific situation. Specifically, the amount of time a restraining order will last depends on the exact type of restraining order you have. Restraining orders in California can be broken down into three categories based on the amount of time they are in effect for.

• Emergency Protective Orders: This specific type of restraining order is often the result of a domestic violence call where a police officer feels there is an emergency situation where you need immediate protection. The law enforcement officer will contact a judge and an emergency protective order will be issued if he/she believes that someone is in immediate danger. These can last five business days or seven calendar days (whichever is shorter). The goal of these orders is to provide protection long enough for a person to file a restraining order. This timing can be extended when emergency orders (such as pandemic related orders) are in place.
• Temporary (ex parte) Restraining Orders: When filing for a restraining order, you will receive a date (often within three weeks of filing) that you will have a hearing to make your case for why the restraining order should go into effect. In certain situations, especially if you need immediate protection, you can ask for a temporary restraining order. These orders can last up to 21 days, only remaining in effect until the restraining order hearing. If the trial does not take place on the first day that it is set, the TRO can be extended through to the next hearing. It is also possible that a TRO can be modified to change the terms during the pendency of the case if the judge receives information that certain protections are unnecessary or unduly burdensome.
• Permanent Restraining Order: Contrary to the name, a permanent restraining order does not last indefinitely. These restraining orders go into effect after a trial where a judge deems the restraining order necessary and can last up to a termination date. If there is no specific termination date listed on the order, the order will last up to 3 years from the date it was issued. You may ask the judge to extend the restraining order during the final three months the order is in effect, and the judge can make an extension without another hearing. The timing guidelines for the various restraining order types are as follows:
  • The maximum time for a DVRO is 5 years
  • The maximum time for CHRO is 5 years
  • The maximum time for an EARO is 5 years
  • The maximum time for a WVRO is 3 years

A question we often hear from individuals contacting our firm for assistance contesting a restraining order filed against them is, “Can I file a counter restraining order against the person who filed against me?” The simple answer is yes, you can file a counter restraining order as long as you can prove you meet the requirements for the specific type of restraining order you are filing. You should not simply file a frivolous action just to be retaliatory.

It is important to note that you will be held to the standard of proof that is required for the specific type of restraining order you are filing. For example, individuals looking to file a domestic violence restraining order (DVRO), you must show that there is reasonable proof that a past act of abuse occurred by an intimate partner. If you are filing a Civil Harassment Restraining Order (CHRO), you must show by clear and convincing evidence that there was a credible threat of violence, actual harm and fear of future harm if the court does not intervent, or a continuous course of conduct that seriously annoys, harasses, or alarms and serves no legitimate purpose.  The definitions of the associated burden of proof terms are not always in line with the everyday perception of what a word may mean.  For instance people often think of “abuse” to mean physical violence when “abuse” encompasses disturbing the peace. These legal requirements can be tricky and it’s critical to invest in the aide of an experienced restraining order lawyer to help – especially where there are competing requests.

Another common question we receive related to restraining orders is, “Who can I list as a protected party?” Well, a number of different people or parties can be protected through a restraining order. Some of the most common examples of protected parties we have seen on restraining orders include:

In some instances, you may be able to recover attorney fees if you are the prevailing party in a restraining order case. For this to happen, however, a judge must grant attorney fees and costs related to the restraining order. While it is not guaranteed in every case, we have been successful in our pursuit of attorney fees for a number of clients.

For example, if you are a respondent in a restraining order and the judge found that your conduct did not warrant a restraining order, they can require the petitioner to cover your costs. On the other hand, if you filed a restraining order out of necessity due to the situation you were in, the judge may order the other party pay your attorney fees because you prevailed as the protected party.  Attorneys fees decisions are often based on whether there was bad faith in the filing of the action, the ability to pay, the prolongation of the matter, the novelty of the subject, and the reasonableness of the fees.

Individuals who were served with a domestic violence restraining order are often concerned about any relating criminal charges. One question we often receive is “If I am served with a domestic violence restraining order, does that mean I am being charged with domestic violence?” The simple answer is no. A domestic violence restraining order and domestic violence criminal charges are two different processes. Only the district attorney (DA) can determine whether or not criminal charges will be filed against you. In this sense, they will make a determination about whether the conduct that led to the restraining order constitutes domestic violence charges if it was reported to the police.

However, just because the processes for these are different does not mean you will not be charged with domestic violence. The district attorney has a specific amount of time after receiving evidence of misconduct to file criminal charges. These are known as the statute of limitations, and they dictate the timeframe for criminal charges to be filed. For most misdemeanors, the statute of limitations is 1 year. For most felonies, the statute of limitations jumps up to 3 years. As of 2019, The Phoenix Act was passed which changed the statute of limitations for domestic violence offenses to 5 years. The Phoenix Act (SB273) applies to domestic violence offenses committed after January 1, 2020 and those committed up to 5 years prior to January 1, 2020.

While being served with a domestic violence restraining order does not mean you will be charged criminally with domestic violence, there is still a chance you could be in the future. At The Nieves Law Firm, we have experience with both restraining orders and domestic violence criminal charges. Contact someone on our team today to schedule a consultation and learn how we can help you contest both the restraining order and any accompanying criminal charges.

At The Nieves Law Firm, we are passionate about protecting individuals from harm or harassment through the use of restraining orders. We have been very successful in our efforts to both file and challenge restraining orders on behalf of clients, and we are always satisfied knowing we helped a person avoid harm or harassment through a legal remedy. It is important to know that the restraining order forum is not a place to secure financial gain or a payout – restraining orders are about protection. The primary goal of a restraining order is to either secure an order that stops harassment or abuse or defend against accusations of harassment or abuse. There are ways to address basic monetary matters like debt payment in a
restraining order, but suing for damages to your reputation or mental state are not applicable in
a restraining order action.

There are other legal actions that an individual can take to pursue financial remedies; however, restraining order court is geared towards fighting about liberties, restrictions, and movement – not compensation. If you need assistance filing a restraining order for protection from another person or defending against a restraining order that has been requested against you, we would love to assist you.