Court decrees known as restraining orders intend to shield a person from the stalking, harassment, and abuse of another. Protective orders are another name for them. To obtain a restraining order, the protected party must prove in court that they fear for their safety or the protection of their loved ones. The restrained person must avoid the protected person for the duration of the order once it is in force. A restraining order violation is a crime punishable by jail time and a hefty fine.
California criminal courts issue different restraining orders for various reasons, including domestic violence, elder abuse, employment harassment, and civil harassment. If you have a restraining order against you and it was issued to you in Los Angeles, it is beneficial to comprehend its legal ramifications and nature to prevent serious legal repercussions. A skilled criminal attorney will also assist you in understanding the dos and don'ts of a restraint order. The Los Angeles Criminal Attorney team is always available to assist you with your legal needs.
Legal Definition of Restraining Orders
Criminal court judges frequently issue restraining or protective orders when someone is the target of harassment, abuse, threats, or stalking. The injunction forbids any interaction between the protected party and the restrained person that could lead to abuse or violence. If an abused person can demonstrate a good cause, they can obtain a restraining order against any abusive individual in their life.
For example, a person can ask for a protective order against their spouse, present or past partner or spouse, current or previous roommate, family member, or coworker. They could even obtain a restraining order to shield their pet from abuse or harassment by a specific person.
To keep the protected party or their loved ones safe, restraining orders contain specific details about what the restrained party must do or not do. For example, it could contain a "keep away" order if you (the restrained person) must avoid all contact with the protected person or a "move out" order if you must leave the home or a building where the protected person or their family members live. You must stop performing actions the order forbids as soon as the judge orders it. A person could face arrest and criminal charges if they disobey a court order.
Most protective orders include restrictions on actions that can jeopardize the well-being or safety of the person they intend to protect. You will not be allowed to approach, stalk, or speak to the protected individual or their family members. Some protection orders forbid direct communication between the restricted person and the protected person, while other orders forbid social media contact. When you receive a stay-away order, you must keep a certain distance from the protected individual. Some stay-away orders specify prohibited areas, like the protected person's home or workplace.
A habitation exclusion order, which demands that you leave the home, structure, or street where the protected party resides, is another form of a protective order. The alleged victim's safety and well-being are significant factors in the judge's judgment. If a judge believes that you will continue to physically or emotionally abuse the victim if you remain close to them, he/she will issue a court order compelling you to relocate.
However, the protected party will have to prove in court that you issued threats to them and that those threats impacted them. When issuing a restraining order, the judge does not require evidence that you physically or emotionally harmed the victim. The victim must have a solid reason to fear abuse or injury from you. However, in domestic violence cases, the victim must show evidence of physical, psychological, and/or emotional abuse to obtain a protective order.
Types of Protective Orders Available in California
When a person needs a court order to keep them safe from you, they do so by obtaining a restraining or protective order. There are mainly three types of protective orders. Judges give these orders according to the issue at hand.
Emergency Protective Orders or EPOs
EPOs are issued in accordance with California Family Code 6250. If a law enforcement officer has a good reason to believe that the individual seeking the court's protection is in imminent danger of domestic violence, they are permitted by this statute to obtain an emergency protective order. The order safeguards the alleged victim from abuse, stalking, and threats made by the party for whom the protective order is requested.
Keep in mind that a police officer is the only one who can request an emergency restraining order in court. They act on behalf of a person who needs protection. Judges in California's criminal courts have a legal obligation to be on-call around-the-clock to ensure that people requiring EPOs obtain them in time to prevent matters from escalating.
But for them to work, EPOs must be legitimate. A judge or commissioner can issue an EPO that is legitimate. It must also be given following these findings by the commissioner or judge:
- The officer has a sound basis for thinking that the victim can be at immediate risk from domestic abuse.
- A minor is at risk of being kidnapped or mistreated.
- A dependent or elderly adult is in immediate danger of harm or abuse.
- The EPO will safeguard the person at risk of domestic abuse and the child at risk of kidnapping or abuse, or it will stop the abuse or violence from happening again.
- The EPO will stop elder or dependent adult abuse from occurring or recurring.
An EPO will become final as soon as an officer receives it on behalf of an accused victim. Additionally, it will be in effect for a week (seven calendar days or five business days). The EPO will order you to leave your home for the duration of the protection order if you reside there or with the protected person.
An EPO can only be given to the victim of civil harassment if you have been stalking them.
Remember that before a victim of abuse can ask the judge for a temporary protective order, an EPO could shield them from immediate harm. If a temporary restraining order is granted to the victim following the EPO, the domestic violence protection order will be in effect for three years.
Temporary Restraining Orders or TROs
A temporary protective order shields a victim of stalking, domestic violence, threats, or harassment from their abuser until a criminal court rules on their case. The order is valid for twenty to twenty-five days. Judges give temporary restraining orders only when the victim is in immediate danger and needs protection before their case is over. After the order's duration is up, the victim will appear in court, where the judge will decide whether or not to grant a permanent protective order against the harasser.
Permanent Restraining Orders
Following the issuing of temporary restraining orders, a victim of abuse could receive a permanent restraining order if the judge believes that they are still in danger even after the conclusion of their case. These orders are only given out if the victim still needs protection from you, even after the judge has resolved their case against the abuser or harasser. To safeguard the victim, judges first issue temporary restraining orders. The judge will conduct a hearing to decide how to proceed with the claimed victim and the abuser after the order's time frame expires. Based on the hearing results, the judge can conclude that the victim is genuinely in danger. The victim will then require a more long-term approach to protect themselves from their harasser.
Victims of abuse are protected for a very long time by permanent restraining orders. This form of protective order duration of protection depends on the matter at hand. For example, the judge could issue a five-year order if someone requests one to protect themselves from domestic abuse. The duration of a permanent restraining order against harassment could be three years. You must apply for a new order if you need additional protection after the order period.
Circumstances Under Which California Judges Issue Restraining Orders
In California, judges issue protective orders in various circumstances, including the following:
In Domestic Violence Situations
Domestic violence happens when someone acts in a way that enables them to gain control or influence over their spouse or another close partner. If they are facing abuse at the hands of someone with whom they have an intimate relationship, victims of violence can obtain a protective order if the two people have any of the following relationships:
- Live together
- Dating or dated in the past
- Have a child/children together
- Are family members
- Are in-laws
Elder Abuse or Abuse of a Dependent Adult
Legally, everyone aged 65 years or older is considered an elderly person. A dependent adult is a person between the ages of eighteen and sixty-four with a physical or mental impairment that forces them to depend primarily on others for all their needs. The law provides protection from maltreatment for the elderly and dependent individuals. If they are subjected to harassment, abuse, threats, bodily harm, neglect, or deprivation, they can seek a restraining order against their abuser.
A person who experiences civil harassment can ask for a protective order. Civil harassment is when someone is facing abuse, threats, or harassment from someone they do not know well or have a relationship with. For example, you could ask for a protective order against your neighbor if they regularly threaten harm to you or your family. This would be a civil harassment situation.
When an employee receives serious threats of immediate harm, assault, or abuse from coworkers or other individuals at their place of employment, the employer can seek a protective order on the employee's behalf. The employee facing threats, in this case, cannot acquire this court order on their own. If they want to protect themselves, they can file a civil harassment protection order against the harasser or a protective order for domestic violence if the harasser is a person with whom they have a close relationship.
The Basics of Domestic Violence Restraining Orders
A domestic violence restraining order is necessary if a person is facing abuse, harassment, or threats from a person that:
- They are married or were married to
- They are dating or were dating
- They are engaged or were engaged to
- A co-parent
- A cohabitant
- A close family member, like a sibling, child, parent, grandparent, or in-law
Victims of abuse are free to go to court and file for a domestic violence complaint against any of those people if they harass them, make verbal threats against them, or hurt them physically. The court will then impose a restraining order. The protective order could result from specific abusive behaviors, including stealing, stalking, hurling objects at you, or destroying their property. Victims of abuse can call the police if they believe they are in immediate danger. While they wait for the legal procedure to be completed to acquire a temporary or permanent restraining order against the offender, an officer will seek an emergency restraining order for them.
Domestic violence restraining order mandates that the person under it:
- Remain distant from and avoid any contact with the protected person or any other person named in the order
- Not to own or acquire any firearms.
- To only visit their children following the judge's imposed custody guidelines
- Always pay child and spousal support.
- To refrain from interfering with any property they jointly possess with the victim.
You will face criminal charges and could be subject to jail time and court fines if you disobey any rules in this order.
Note: A judge can impose multiple restraining orders against the same defendant.
Filling out the necessary paperwork is the first step in obtaining a restraining order for the victim. A form DV-100 will be needed to request the order, and another will be necessary to describe the type of abuse they experienced. Various forms are available, depending on the situation. For example, they will need to complete additional papers to obtain custody and visitation if they have kids.
Once the victim has the necessary documentation, they should submit a request for a restraining order in the same jurisdiction as the abuse. They can apply for a protective order in the exact location, for example, if they reside in Los Angeles and the abuse occurred there.
If a victim begins by bringing a criminal case against the person under restraint, the judge will give them a temporary protective order until they resolve the matter. Whether they require a permanent restraining order will depend on the judge's ruling following the trial.
Once the victim has the restraining order, they have until the date listed on the order to serve you. They can employ a certified server, or the police will handle it on their behalf. They could also send any adult who is not involved in the case to serve you as an alternative.
Consequences for Violating a Restraining Order
When a person under restraint disobeys a court-issued order, it violates the restraining order. According to California PC 273.6, doing so will result in criminal prosecution. But for the court to find you guilty of disobeying a restraining order, the prosecution must establish the following criteria beyond a shadow of a doubt:
- A person obtained a protective order against you
- They served you the order — you were aware of the order's existence
- You could follow the order
- But you willfully violated it
In most cases, violating a restraining order is charged as a misdemeanor, attracting the following penalties:
- Time in jail for a maximum of one year
- A fine of up to $1000
The offense is a wobbler in specific circumstances like:
- You have a previous conviction in your criminal record for violating a restraining order
- You broke the order through acts of violence
The district attorney can charge it as a felony or misdemeanor as a wobbler. A misdemeanor conviction will attract the penalties listed above. But a felony conviction will attract heftier penalties, including:
- A maximum of three years in prison
- A fine of up to $10,000
Other Prohibitions that Come With a Restraining Order
The court can impose additional restrictions on the individual under a restraining order, like banning them from acquiring or having a gun. For the duration of the order, this restriction is in force. If you violate this restriction, you will face charges with a crime under California PC 29825. The possession, ownership, or purchase of a firearm by a person when subject to a court order is illegal under this statute. Even if the gun you own, possess, or buy is unusable, you will still face charges. Penal Code 29825 violations are felonies that carry a maximum three-year jail sentence.
Challenging a Restraining Order
The repercussions could be severe if you find yourself in a scenario where someone has acquired a restraining order against you. It would be best if you comprehended the order's specifics and its legal ramifications. To avoid further legal problems, you should also abide by its provisions.
It could significantly affect your life if you are the subject of a protective order because of domestic abuse. They quickly schedule a hearing when the court grants a restraining order. As a result, you must move fast. The individual who received the protective order has already filed a lawsuit and presented the court with evidence against you. Based on that evidence, the judge has a legitimate reason to impose the protective order.
You will be required to appear for a hearing within twenty-one days of receiving the order. The judge will consider the case-related evidence during the hearing to decide whether to keep the order in place. Having a skilled criminal attorney at your side is a good idea to go over your options and the scenario.
Your lawyer will also assist you in organizing and planning how you will contest the restraining order. The judge will introduce the case and go over all of the evidence against you by the protected person during the hearing. They will then offer the defense a chance to object to the restraining order and provide their evidence. Your attorney can start by pointing out that the order is unnecessary in the given situation.
To refute the claims made by the protected person, your attorney can also present evidence in your favor. A witness could also be called. The interim protection order will expire and not be changed into a permanent protective order if the judge concurs with your attorney.
The judge will issue a permanent protective order, which can last up to five years if the putative victim offers strong evidence against you. The protected person will require the following types of proof to obtain a restraining order:
- Threatening or irate voicemails, emails, or text messages from the restricted person
- Accounts from eyewitnesses detailing what they heard or saw, including acts of violence
- Images and videos of the restrained individual inflicting bodily harm on the person being safeguarded
- Police reports providing a comprehensive account of the restrained person's violence
Note: If you disagree with the judge's judgment, you are free to appeal it. With the aid of your criminal defense attorney, you can accomplish that. If you prevail on appeal, the judge will lift the permanent restraining order and restore your freedom.
Find a Skilled Criminal Attorney Near Me
Los Angeles residents with restraining orders against them must be highly concerned about their legal ramifications and effects. Your social life is just one of the many parts of your life that a restraining order could alter. You must comprehend its meaning and your responsibilities to comply with it. An experienced criminal attorney could explain the order's purpose to you and advise you on what to do and what not to do to stay out of trouble with the law. At Los Angeles Criminal Attorney, we continue to struggle alongside you until you receive a just resolution to your case. To learn more about the restraining order you have, contact us at 424-333-0943.