Domestic Violence Intervention Collaborative
promoting collaborative responses to domestic violence
Domestic Violence Intervention Collaborative
1. How do I file a Civil Restraining Order?
The most effective way to file a Restraining Order is to come to Family Court, located at 201 N. First Street, San Jose, CA. The Self-Help Center will be able to provide a restraining order packet.
Or you can print and write a Restraining Order by going to the "Restraining Orders" section on this website. Print the Restraining Order forms needed (100, 109, and 110) and after you complete the forms, take them to the Self-Help Center. If you have any further questions, you can call the Self-Help Center at (408) 882-2900 from 9am-3pm.
Self-Help Center Website: http://www.scselfservice.org
2. What kind of Civil Restraining Orders can I get?
(You can go to the restraining order page or look at the following)
There are typically two kinds of Restraining Orders you can ask the court to grant.
A. A Stay Away Order: The Respondent (the person you are taking the Restraining Order against) must stay 300 yards away from you, your house, your car, your place of employment at all times. The Respondent cannot talk to you, email, text, or call you, the Respondent cannot send another person to talk to you for them. You can include any other people you feel are threatened by this Respondent.
B. A Peaceful Contact Order: The Respondent and you can talk, call, text, email and visit each other at any time as long as you both agree that this communication is ok. If you ask the Respondent to stop talking to you and he/or she does not listen to you; this is a violation of their Peaceful Contact Order. The contact between you and the Respondent must remain peaceful at all times. Under the Peaceful Contact Order, you can even choose to live together or marry each other without violating the Peaceful Contact Order.
The Respondent cannot yell, hit, push, intimidate, block your walking/driving path, call you names or threaten you. Each of these actions are separate violations of the Peaceful Contact Order and you can come back to court, downstairs at the Self-Help Center and notify the court that he/or she has violated his/or her Peaceful Contact Order.
The Peaceful Contact Order is in the police computer system so if you call them, they will have a record of this restraining order.
3. How long does a Civil Restraining Order last?
From 1 month to 5 years.
4. What is proof of service? How can I provide it to the Respondent?
After you file your Restraining Order, you will receive a packet to serve to the Respondent. In order to have your case heard in front of judge, the Respondent needs to receive this packet at least one week before your court date. You can choose three different ways to serve the Restraining Order.
A. You can call and arrange the Sheriff of Santa Clara to personally serve the Restraining Order for you. You can call them at (408) 808-4800. You need an address for the Sheriff to serve the Respondent. The Sheriff will only go to this address about 2 or 3 times and if the Respondent does not open the door, the Sheriff will not return.
B. You can arrange for someone you know to personally serve the Restraining Order. This person must be over 18 years old and not be involved in the Restraining Order case. After this person serves the Restraining Order to the Respondent, this person must fill out a one page form stating where he delivered the Restraining Order, the time and date, and he/or she must sign the bottom of this one page form. They must then return the one page form to you and you must go to Family Court, to the Self-Help Center and hand deliver this form to an employee there. They will stamp it to make it an official form and hand you a copy. Keep this copy and bring it to your day in court.
C. Finally, you can have a local private agency serve the documents to the Respondent. These agencies are called Independent Process Servers. They will go the address provided to them and wait until the Respondent shows up at that address. However, you have to pay to use these agencies’ services and their rates vary from agency to agency.REMEMBER! YOU CANNOT HAVE YOUR RESTRAINING ORDER GRANTED IF THE RESPONDENT DOES NOT RECEIVE A COPY OF YOUR RESTRAINING ORDER!!! THIS IS IMPORTANT!!
5. Can I attach evidence? What kind of evidence can I submit?
Yes. You can attach any printed phone records, any printed emails or text messages with obscene or threatening material. You can take photos of possessions that have been damaged, photos with evidence of physical abuse. These all can be attached with your original Restraining Order.
If you have already filed your Restraining Order but want to add new evidence, you can come to Family Court, go downstairs to the Self-Help Center and tell them you want to make a declaration. A declaration is a specific form that needs to be filled out explaining what added information you are adding to the already filed Restraining Order. Once you fill out this form you add the new evidence to it and then file it.
6. I just received a Restraining Order, what are my options? Can I write a response?
If you have recently received a Restraining Order, attached to the packet you just received is a section where you can write your response. If you believe that the allegations against you are false, you can write down what happened and defend yourself. Attach any pieces of evidence that can help show the court that the allegations against you are completely false. Please remember that in your response packet, be sure to only address the specific events and allegations held against you. Be sure to remain on topic. If you have any witnesses that were present during the events of abuse alleged against you, be sure to bring them to court with you so that they can testify on your behalf. Generally, three is the most witnesses you can bring to court.
7. Are their translators available? If so what languages?
Yes. There are court appointed translators that speak various languages such as Mandarin Chinese, Spanish, Vietnamese, Russian, Italian, and Indian.
8. What does it mean to have a court case continued and to have a trial?
If you case is “continued” it means that a new court date will be given by the judge. A Respondent is allowed one continuance if they oppose the Civil Restraining Order. This continuance is given so that they can appoint a lawyer or gather witnesses or evidence. The judge will give you a new date to return to court, on that day in court the judge will either grant another continuance or the case will go to trial.
If the case goes to trial, the judge will ask both parties to sit down and the judge will ask questions to both parties regarding the issues brought up in the Restraining Order. You will be asked to provide details on the incidents. If you are the Respondent, you will be given the chance to respond to the claims of domestic violence with your version of the truth. At this time, both parties can bring witnesses in front of the court. You will be given an opportunity to ask the witnesses questions regarding the events detailed in the Restraining Order. The Respondent will also be able to ask questions to the witnesses. After this is done, the judge will decide if a Restraining Order is needed or not.
9. Do I need a lawyer? How do I get one?
No you do not need a lawyer. If you choose to represent yourself, you will be in charge of gathering witnesses and evidence on your own.
If you believe you need a lawyer, there are various locations online you can look to find private lawyers that charge a flat hourly rate. There are sliding scale lawyers who charge you according to how much money you make in a year. There are also pro-bono lawyers that represent individuals that come from low income backgrounds.
10. What is an emergency screening?
Sometimes some parenting concerns are brought up in front of the judge that causes alarm. There might be allegations that both parents abuse the children involved or that both parents openly use alcohol or drugs in front of their children. There might also be concerns about the cleanliness of the home the children live in. In this case, a judge can call for an emergency screening in which court appointed workers show up at your home to evaluate the living situation.
On a later date, both parents and the children involved in the court case must show up at the second floor of Family Court to be interviewed by a court therapist. The children will also be interviewed if they are age appropriate. There will also be a situation where each parent will play with a single parent in an isolated room to analyze how the child and parent interact. Then the parent will leave and the other parent will play with the child. This is meant to observe how the child interacts with both parents separately.
Depending on how these interviews and child/parent playtime go, these therapists will make recommendations to the judge regarding custody.