In a family law matter, restraining orders are the first line of defense against domestic violence. Although restraining orders may be sought to protect property and/or to preserve the “status quo” until the contested issues can be adjudicated, most often restraining orders are used as protective orders, specifically designed to ensure the safety of a party and children in a domestic violence situation.
In an emergency situation, certain types of restraining orders may be issued on an Ex Parte basis. An Ex Parte hearing is one which dispenses with the requirements for a formal notice and a formal hearing. Because of due process considerations, restraining orders issued on an Ex Parte basis are of limited duration. They are designed to provide emergency relief and protection until a formal hearing can be scheduled.
In California, there are three ways in which restraining orders can be issued on an Ex Parte basis.
Emergency Protective Orders:
This type of order is issued by the Court either orally, by telephone, or in any other manner at the request of a law enforcement officer who believes that a person is in immediate and present danger of domestic violence or that a child is in immediate and present danger of abuse. These orders may include personal conduct restraining orders, an order that the restrained person stay away from the protected person, and may also include temporary child custody orders. These emergency protective orders are of very limited duration. They are designed to allow a protected person the time to obtain a more appropriate Court order through normal channels.
Automatic Temporary Restraining Orders:
Certain restraining orders are issued automatically upon personally serving the Summons and Petition in a marital action. These orders are actually included as part of the Summons in an action for either divorce, legal separation, or annulment. They are generally designed to protect the “status quo” pending further hearing on the issues.
Domestic Violence Prevention Act and Marital Action Temporary Restraining Orders:
Restraining orders may also be obtained by either filing an action under the Domestic Violence Prevention Act, or by filing a Motion after the commencement of a divorce, legal separation, or annulment proceedings. These orders may issue to preserve property but are more often issued to protect a party or children. They may include personal conduct restraining orders, orders that the restrained person stay away from the protected person, and also order that the restrained person vacate a residence. Once again, orders obtained on an Ex Parte basis are of limited duration. They are designed to provide emergency temporary relief until a formal hearing can be heard on the issues.
A person may also obtain restraining orders after a formally noticed hearing. In a Domestic Violence Act case, these restraining orders may last for up to three (3) years. In a divorce or in a marital action, these restraining orders may have an unlimited duration.
In addition to protecting a party or children, restraining orders may also be used to preserve property. Property restraining orders may include orders to prevent a party from selling or otherwise disposing of property; the establishment of a trust account in which to deposit assets; restraint on further encumbrances on real property and other measures to prevent the loss of property, and/or to protect against further obligations.
Restraining orders can be a valuable tool to protect both lives and property. If you have any questions as to whether or not whether restraining orders are appropriate in your case, you should contact your attorney for advice.
(Note: Laws vary from state to state. The legal discussions contained herein are general in nature, but some of the concepts apply only to California law. The law in your state may be different. You should never attempt to analyze the legal ramifications of your own case. Always consult an attorney immediately if you believe you may have a legal problem).
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