California Laws on Restraining Order Appeals
Judges issue restraining orders to protect victims of abuse and harassment from further violence. For this reason, restraining order are taken seriously and can be difficult to appeal. Legal assistance is recommended. There are two types of restraining orders in California: temporary restraining orders (also called "emergency" or "ex parte" restraining orders) and permanent restraining orders. It is easier to appeal a temporary restraining order than a permanent one.
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TRO Answer
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The first opportunity a restrained person in California has to appeal a restraining order is after a temporary restraining order (TRO) is issued. When the restrained person is "served" (given legal notice of) the TRO, he should complete the appropriate form (depending on the type of restraining order that has been issued) and respond to the allegations. For example, in the case of a domestic violence restraining order, the restrained should complete form DV-120, "Answer to Temporary Restraining Order," which provides your response to the allegations and terms of the restraining order. This is your preliminary legal right in appealing a restraining order.
Hearing
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The next step of appeal is to appear at the hearing. When you are served by the court, you will be given notice of the time and place of hearing. It is important to appear or the restraining order may be granted in your absence making it more difficult for you to appear for appeal later.
At the hearing, you have the right to present your case to the judge along with any evidence supporting your case, such as witness testimony and written communication. Legal assistance can be helpful if you wish to successfully appeal the restraining order.
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Appeal
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Once a permanent restraining order has been issued against you, you have the right to appeal the judge's decision in appellate court. In California there is one court of appeal in each judicial district: San Francisco, Los Angeles, Sacramento, San Diego, Fresno and San Jose.) Submit Form APP-002, "Notice of Appeal."
In an appeals case, a three-judge panel will examine your case to decide if proper legal procedure was followed and the judge acted judiciously.
The panel will examine the transcripts and evidence in your case to determine whether or not a miscarriage of justice transpired. No new evidence may be submitted. You and your lawyer must demonstrate the judge ruled inaccurately or evidence was insufficiently examined.
The appeals process does not negate the restraining order until it is ruled on. Do not attempt to contact the petitioner during the appeals process.
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References
Resources
- California Courts: DV-120 Answer to Temporary Restraining Order
- California Courts: EA-110 Response to Request for Orders to Stop Elder or Dependent Adult Abuse
- California Courts: CH-110 Answer To Request For Orders To Stop Harassment (Civil Harassment)
- California Courts: WV-110 Response to Petition of Employer for Injunction Prohibiting Violence or Threats of Violence Against Employee (Workplace Violence)
- California Courts: APP-002 Notice of Appeal
- Photo Credit gavel image by Cora Reed from Fotolia.com
