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A Civil Harassment Restraining Order (CHO) is a form of restraining order or order of protection used in the state of California. It is a legal intervention in which a person who is deemed to be harassing, threatening or stalking another person is ordered to stop, with the goal of reducing risk of further threat or harm to the person being harassed. Some restraining orders are limited to domestic partners, but the CHO is not. It is frequently used with the purpose of preventing harassment by co-workers, neighbours, strangers and acquaintances.[1]
Pursuant to California Code of Civil Procedure section 527.6(b), in order to justify a CHO, the harassment must be "such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the victim."[2]
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Civil Harassment Chapter 3 - The Restraining Order Process
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Civil Harassment Chapter 2 - When is a Restraining Order is Available?
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Is it a crime to violate a restraining order? (Penal Code 273.6)
Transcription
This chapter will give you information about the court process for making civil harassment restraining orders. You will learn how to ask the court for a restraining order and what to do if someone has asked the court for a restraining order against you. You can get more information about these procedures on two Judicial Council forms: If you want a restraining order against someone, see Form CH-100-INFO, Can a Civil Harassment Restraining Order Help Me? And if someone has asked for a restraining order against you, see Form CH-120-INFO, How Can I Respond to a Request for Civil Harassment Restraining Orders? Chapter 5 will tell you where you can get the forms mentioned in this video and help filling them out. Civil harassment cases have many complicated rules, move very quickly, and can seriously affect both people. If possible, discuss the restraining order process with a lawyer or self-help center. There are two types of civil harassment restraining orders. A judge can make a Temporary Restraining Order — sometimes called a TRO — very quickly, without a court hearing, and often without any advance notice to the Restrained Person. If a judge makes a TRO, the court will schedule a hearing within 25 days and the TRO will end on that hearing date. A judge can make a Restraining Order After Hearing -sometimes called a permanent restraining order- only after the Restrained Person has been notified that there will be a court hearing and had a chance to explain his or her point of view. Although they are sometimes called permanent, a Restraining Order After Hearing can only last for up to three years, unless it is renewed. To request either type of restraining order, you must fill out four Judicial Council forms: Form CH-100, Request for Civil Harassment Restraining Orders Form CH-109, Notice of Court Hearing Form CLETS-001, Confidential CLETS Information Form CM-010, Civil Case Cover Sheet To request a TRO, you must also fill out Form CH-110, Temporary Restraining Order. You can also turn in written statements from witnesses, signed under penalty of perjury, to support your request for restraining orders. You must file the completed forms with the clerk of the superior court in the county where the Restrained Person lives, or where any of the harassment happened. You may have to pay a court fee to file the forms. You will not need to pay a fee if your Form CH-100 says you are asking for a restraining order because the Restrained Person committed or threatened violence against you, stalked you, or acted in another way that made you reasonably fear violence. If you are requesting the restraining order for another reason and you cannot afford to pay the filing fee, you can file Form FW-001, Request to Waive Court Fees. When you file your papers and pay any fees that are required, the court will open a civil harassment case. If you ask for a temporary restraining order, a judge will decide whether to make the TRO by the end of the day or the end of the next court day. The judge will make a TRO if he or she decides that your forms show: reasonable proof that the Restrained Person harassed you AND that great or permanent harm would happen if a TRO is not made. Whether or not a judge makes a TRO, the court will schedule a hearing about whether to make a permanent restraining order. The court will write the hearing date, time, and location on Form CH-109, Notice of Court Hearing. You may need to come back to the courthouse so the clerk can give you back file-stamped copies of this form and the others you filed. The forms that the clerk returns will give you instructions about what to do next. If the court makes a TRO, information about that order must be entered into a law enforcement computer system, so the police can enforce the order throughout the state. The Form CH-110 that the clerk returns will tell you whether the court will submit the information or whether you must take the TRO to the police department yourself. After the court schedules the hearing, the Protected Person must arrange for an adult who is not involved in the case to personally deliver all of the forms listed in CH-100 and CH-110 to the Restrained Person. This is called “service” and lets the Restrained Person know about the hearing and about any temporary restraining order. Service is very important. It must be done in the correct legal way and within the time the court ordered on Form CH-109. If it is not, the judge cannot make a permanent restraining order at the hearing. To find out more about serving the forms and proving that this was done correctly, see Form CH-200-INFO, What is “Proof of Personal Service”? If someone has asked the court for civil harassment restraining orders against you, carefully read all the papers you receive. If you can’t read the papers, have someone read them to you. If you receive Form CH-110, Temporary Restraining Order, you MUST obey all the terms of that order. Otherwise, you can be arrested, put in jail, and fined. Form CH-109, Notice of Court Hearing, tells you when and where a judge will consider evidence and decide whether to make permanent restraining orders against you. Form CH-100, Request for Civil Harassment Restraining Orders, tells you how the Protected Person says you harassed him or her and what permanent restraining orders he or she is asking the court to make. You can respond to the request for permanent restraining orders in writing before the hearing, in person at the hearing, or both. It is best to attend the hearing even if you respond in writing, so that you can explain your side of the story and answer any questions that the judge has. But, if you do not respond in either way, the court may make permanent restraining orders without any information about your point of view. To respond in writing, fill out Form CH-120, Response to Request for Civil Harassment Restraining Orders. On this form, you will say whether you agree or disagree with the judge making permanent restraining orders. You can also deny that you harassed the Protected Person or explain your conduct. If you respond in writing, you must have another adult mail or deliver your Form CH-120 to the Protected Person in the correct legal way. The person who mails or delivers your Form CH-120 must complete Form CH-250, Proof of Service of Response by Mail, Form CH- 200, Proof of Personal Service, or another legal proof of service form. You should then file your Form CH-120 and the proof of service with the court before the hearing. You may have to pay a court fee to file the forms. But, you do not need to pay a filing fee if the Protected Person said he or she was requesting restraining orders because you committed or threatened violence against him or her, stalked him or her, or acted or spoke in another way that made him or her reasonably fear violence. If the Protected Person requested restraining orders for another reason and you cannot afford to pay the fee, you can file Form FW-001, Request to Waive Court Fees. If the Protected Person has harassed you, you can ask the court for restraining orders protecting you from that person. To do this, you must complete the forms and follow the procedures that were discussed earlier in this chapter. You CANNOT request restraining orders on your Form CH-120. It is important to carefully prepare for your hearing before you go to court. You need to: Understand the civil harassment laws Know about the facts that support your point of view AND the facts that support the other person Organize the information that you want the judge to consider and Plan what you will say at the hearing. To prepare, be sure to: Read Form CH-100-INFO, Form CH-120-INFO, and other materials that explain the civil harassment law and procedures. Talk to a lawyer or a self-help center, if possible. Gather any evidence about the claimed harassment, such as letters, e-mails, photographs, police reports, and medical records. Talk to any witnesses. Have subpoenas served on those you want to testify or bring evidence to your hearing, unless you are sure they will come voluntarily. Go to the courthouse before your court date and watch civil harassment hearings, so you know what to expect. It is important for both the Protected Person and the Restrained Person to go to the court hearing. If you do not go, the judge may decide against you without knowing your point of view. If you are not completely comfortable speaking and understanding English, bring an adult who can translate for you. This is your only chance to present your case, and you want to make sure you can understand everything that is said and present your evidence. The court probably will not be able to provide an interpreter for you. Presenting evidence in court is difficult. Chapter 5 will give you some resources to help you prepare and present your evidence. During the hearing, the judge will consider any evidence that is properly presented. The judge may also ask questions or request more information. But, the law may not allow the judge to consider some evidence you think is important. For example, witnesses can normally only testify about something they personally saw, heard, or experienced, and not about something that someone else told them. After considering the evidence that was properly presented at the hearing, the judge will decide whether to make permanent restraining orders. The judge can only make permanent restraining orders if clear and convincing evidence shows that the Restrained Person committed acts that the law considers harassment. The “clear and convincing evidence” required for permanent restraining orders is stronger than the evidence required for temporary restraining orders. A person who was given a TRO will not be given a permanent restraining order unless the evidence meets the stronger requirement. If the judge makes a permanent restraining order, he or she will sign Form CH-130, Civil Harassment Restraining Order After Hearing. Form CH-130 will say what the Restrained Person must and must not do and how long the restraining order will last. Civil harassment restraining orders usually prohibit: stalking, threatening, attacking, or disturbing the peace of the Protected Person, contacting the Protected Person in any way, and coming near the Protected Person and places he or she often goes. But, civil harassment restraining orders CANNOT make the Restrained Person stay away from his or her own home, job, or school. The restraining order will also prohibit the Restrained Person from owning or possessing any firearms or ammunition. The restraining order can also require or prohibit other acts if the judge decides this is necessary. The judge can also order that the person who won the case recover his or her costs and lawyer’s fees from the person who lost. If the judge makes a permanent restraining order, Form CH-130 may say that someone must serve the order on the Restrained Person and that the Protected Person must deliver a copy of the order and proof of service to a local police department. The Protected Person should also keep a copy of the restraining order and proof of service with him or her at all times. The Restrained Person must: Obey all terms of the restraining order Sell any guns that he or she owns or possesses to a licensed gun dealer, or turn them in to the police, within 24 hours after being served with the restraining order. File with the court a receipt that proves the guns have been sold or turned in within 48 hours after being served with the order. Not own or possess any guns or ammunition as long as the restraining order is in effect. If the Restrained Person violates a temporary or permanent restraining order: The Protected Person should call the police and give the police a copy of the restraining order and proof of service. The person who violated the restraining order may be arrested, put in jail, and fined. As you have seen, preparing, filing and serving papers, preparing for and going to a court hearing, and obeying or enforcing a restraining order can be complicated, stressful, and time consuming. It can also be expensive in terms of court fees, lawyers’ fees, and time off work. The next chapter of this video will give you information about mediation, which may help you resolve a civil harassment dispute more quickly, more easily, and less expensively.
Provisions and process
A CHO can require the harasser to stop initiating contact with the victim, and/or to stay away from the victim's family, workplace, home, and/or school.[3]
A temporary CHO will be in effect until a court hearing can be held, normally within 15–22 days. A "final order" CHO, which may be granted following the court hearing, remains in effect for up to three years.[4]
A CHO does not go into effect until it is served to the person being restrained. Serving the CHO is the responsibility of the petitioner. Service can be carried out by the Sheriff's Department of the county where the harasser lives or works, or by any adult who is not a party named in the case.[3]
Punishment for violation
The crime of stalking is punishable in California by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. The punishment for violating a CHO is 2–4 years of imprisonment.[1]
Other types
The CHO is one of six types of restraining orders used in California. The Emergency Protective Order, the Domestic Violence Temporary Restraining Order and the Criminal Protective ("No Contact") Order, are aimed at protecting against domestic violence. The Elder or Dependent Adult Protective Order is aimed at protecting victims who are over 65 years old and/or who have certain disabilities. The Workplace Violence Restraining Order is aimed at protecting employees from violence in the workplace.[1] Several hundred thousand restraining orders are in effect in California at any time, and between 80 and 95 per cent cover domestic violence involving adults.[5]
Effectiveness
Experts disagree on whether restraining orders are effective in preventing further harassment. A 2010 analysis published in the Journal of the American Academy of Psychiatry and the Law reviewed 15 U.S. studies of restraining order effectiveness, and concluded that restraining orders "can serve a useful role in threat management."[6] However, a 2002 analysis of 32 U.S. studies found that restraining orders are violated an average of 40 per cent of the time and are perceived as being "followed by worse events" almost 21 per cent of the time, and concluded that "evidence of [restraining orders'] relative efficacy is lacking," and that they may pose some degree of risk.[7] A large America-wide telephone survey conducted in 1998 found that, of stalking victims who obtained a restraining order, more than 68 per cent reported it being violated by their stalker.[8]
Threat management experts are often suspicious of restraining orders, believing they may escalate or enrage stalkers. In his 1997 book The Gift Of Fear, well-known American security specialist Gavin de Becker characterized restraining orders as "homework assignments police give to women to prove they're really committed to getting away from their pursuers," and said they "clearly serve police and prosecutors," but "they do not always serve victims."[9]
References
- ^ a b c Lane, Lindsay. "ASUC Student Legal Clinic". Domestic Violence, Restraining Orders and Stalking. Associated Students of the University of California. Retrieved 14 June 2011.
- ^ "CODE OF CIVIL PROCEDURE SECTION 525-534". The Legislative Counsel of California. Archived from the original on 30 October 2010. Retrieved 14 June 2011.
- ^ a b "Civil Harassment Restraining Order". Superior Court of California, County of San Diego. Retrieved 14 June 2011.
- ^ "Civil Harassment Orders". Women'sLaw.Org. National Network to end Domestic Violence. Retrieved 14 June 2011.
- ^ Sorenson, Susan B.; Haika Shen (July 2005). "Restraining Orders in California: A Look at Statewide Data" (PDF). Violence Against Women. 7. 11 (7): 912–933. doi:10.1177/1077801205276944. PMID 16043577. S2CID 39711827. Archived from the original (PDF) on 10 June 2011. Retrieved 14 June 2011.
- ^ Benitez, MD, Christopher T.; Dale E. McNiel; Renée L. Binder (2010). "Do Protection Orders Protect?". Journal of the American Academy of Psychiatry and the Law. 3. 38 (3): 376–385. PMID 20852224. Retrieved 14 June 2011.
- ^ Spitzberg, Brian H. (October 2002). "The Tactical Topography of Stalking Victimization and Management". Trauma, Violence and Abuse. 4. 3 (4): 261–288. doi:10.1177/1524838002237330. S2CID 146721263.
- ^ Tjaden, P.; Thoennes, N. (April 1998). "Stalking In America: Findings From the National Violence Against Women Survey". National Institute of Justice and Centers for Disease Control and Prevention (NCJ 169592): 1–19.
- ^ De Becker, Gavin (1997). The Gift Of Fear And Other Survival Signals That Will Protect Us From Violence. New York: Dell Publishing. pp. 223–229. ISBN 0-440-22619-8.
This page was last edited on 17 January 2024, at 07:41