How to Appeal a Custody Restraining Order in California

Restraining orders can protect children from abuse.

Judges issue restraining orders to protect victims of abuse from further violence. Restraining orders can have many different terms, based on the situation; in domestic violence situations, they often grant temporary custody of children to the person filing for the restraining order. The children are then protected under the terms of the restraining order, as well. The California courts have a legal process that allows for appeals of restraining orders.

Instructions

1. Adhere to the terms of the restraining order as long as it is in place, even if you intend to appeal it. If you violate any part of the restraining order -- even if the person who took out the order gives you permission -- you may be arrested, fined, and even jailed. Also, violating the terms of the order may make the judge look less favorably on your case when you go to court to appeal the restraining order.

2. Examine all the paperwork you receive when the restraining order is served on you. Law enforcement will give you California Form DV-109, which informs you of the hearing date and time. The paperwork details the terms of custody and other arrangements set by the restraining order.

3. File your Answer to Temporary Restraining Order, Form DV-120, with the court clerk. Use this form to briefly state your side of the story and your response to the custody and other terms of the restraining order. Have someone mail your Answer to the petitioner. This person must also complete and file Form DV-250, Proof of Service by Mail.

4. Prepare to present your case in court. Practice demonstrating to the judge that the restraining order, or at least the custody terms, are unjust or unnecessary. Collect evidence to support your case, such as written communication with the petitioner, and witness testimony. Because of the difficult issues often involved in custody cases, consider getting a lawyer to help you with your case.

5. Attend the hearing or the judge may make the restraining order permanent in your absence. At the hearing, you and the petitioner will both have the opportunity to present your case before the judge, who will then rule. If the restraining order is granted despite your appeal, it may be in effect until the children turn 18.

6. Submit a Notice of Appeal, Form APP-002, to appeal the decision if a permanent restraining order is issued against you. A three-judge panel in the appellant court will review the case to determine whether proper legal procedure was followed and the judge acted judiciously.

References

• California Courts: Information for a Restrained Person
• Justia: California Code of Civil Procedure Sections 901-914

Resources

• California Courts: DV-120 Answer to Temporary Restraining Order
• California Courts: APP-002 Notice of Appeal