PRACTICE AREAS

 

What is the difference between Automatic Temporary Restraining Orders, Temporary Restraining Orders and Permanent Restraining Orders?

What are Automatic Temporary Restraining Orders ("ATROS")?

Upon the filing of the Summons and Petition, standard family law restraining orders will be in effect. These restraining orders appear on Page 2 of the Summons. The standard family law restraining orders apply to both parties and are issued automatically in every case. The standard family law restraining orders provide that the parties are restrained from:

  • Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court
  • Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
  • Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
  • Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.

A party must notify the other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, a party may use community property, quasi-community property, or his/her own separate property to pay an attorney to help him/her or to pay court costs.

How do I apply for a Temporary Restraining Order?

A restraining order is a court order issued to protect a party against abuse. A restraining order may include the following orders: orders for the abuser to stay-away from the protected party's home, work, and/or children's school; orders for the abuser to be removed from the residence if the parties are still living together; child custody, visitation, and support; and spousal support.

  • Abuse is defined, according to the Domestic Violence Prevention Act    FC § 6203, as intentionally or recklessly to cause or attempt to casue bodily injury, sexual assault, to place a person in reasonable apprehension of imminent serious bodily injury to that person or to another, to engage in any behavior that has been or could be enjoined pursuant to Section 6320.
  • The act(s) of abuse must be recent, and the abuser must be a spouse, ex spouse, boyfriend/girlfriend, ex-boyfriend/ex-girlfriend, someone with whom the victim has or has had a dating relationship, an immediate family member, or a person with whom a party has a child(ren) together.

A TRO is effective once it has been signed by the Judge and served on the restrained person.

How do I apply for a Permanent Restraining Order?

If the Judge issues a Temporary Restraining Order, a hearing is scheduled in order for both parties (the restrained party and the protected party) to have the opportunity to explain to the Court why a Permanent Restraining Order should/should not be issued.

At the hearing, the Judge will determine if there is sufficient cause for the court to issue a Permanent Restraining Order. Based upon the evidence presented at this hearing, a court may order the restrained person from engaging in certain acts and from being in certain places.

After a hearing, a Restraining Order is effective for a period of time, up to three years. The Permanent Restraining Order may be renewed for additional periods of time and its duration may become permanent.

The material available on this website is intended for informational purposes in California only, and does not constitute legal or other professional advice.  Reading this website or contacting Vergari & Napolitano does not constitute the forming of an attorney-client relationship, which can only be established by entering into a written retainer agreement.

While we intend to make every attempt to keep the information contained in this website current, we do not promise or guarantee that the information is correct, complete, or up-to-date.  Vergari & Napolitano is not responsible for any third-party contents which is accessible through this website.