A restraining order is also known as a protective order. This is an order issued by the court to offer protection against sexual or physical abuse, threats, stalking, or harassment. A person that files to get a protective order is known as the protected individual or person. The person that the protective order has been issued against is called the restrained individual or person. In some cases, a protective order can be issued to protect the family and the members of the person that filed for it. If you have been issued with a protective order and wish to fight it, you can hire an experienced lawyer to help you get your rights back. Call us at Los Angeles Criminal Attorney, and we will help you fight against the order.
What Restraining Orders are All About
Generally, restraining orders involve the following:
Personal Conduct Orders
Specific orders are designed to stop particular acts against all the people mentioned in the order or the protected persons in the order. With this kind of an order, the restrained individual is ordered not to: Make contact, call or send messages to the protected persons, hit, attack or batter the protected individuals. The order further prohibits stalking, threatening, sexually assaulting, or harassing the protected individual. In addition, the order protects against the destruction of the protected person’s property or causing chaos that denies the person peace.
Stay Away Orders
This kind of order is designed to restrain a person from coming to a specific distance within the protected person. For instance, the restrained person can be ordered not to go within 100 or 50 yards from The home of the protected individual, the protected person, or their workplace. Additionally, the restrained person is prohibited from going near the school of the protected person’s children or their childcare facility. The order further cautions the restrained person from going near the car of the protected individual, or places they frequent and are important to them.
Residence Exclusion Orders (Move out Orders)
Orders are issued against the restrained individual, ordering them to get out of the shared accommodation or house where the individual protected by the order lives. The order asks the restrained person to pick their personal belongings and stay away until the case is heard by the court. These orders are only available in domestic violence cases and elder abuse cases.
Restraining orders against an individual can have dire consequences against them. These include:
- The restrained person will be limited from going to particular places to do specific things.
- The restrained person may be forced to move out of their home
- The restrained person may find it challenging to see their children
- The restrained person is not allowed to possess a firearm. In case they already have one, they will be required to return it to the authority, store, or sell firearms. Additionally, for the period that the protective order is valid, the person will not be allowed to buy any firearms.
- If the person is an immigrant making an effort to have a green card, the restraining order will negatively affect their immigration status.
In case the restrained individual breaks the order, they can be jailed or be asked to pay a cash fine, and in some cases, they can both go to jail as well as pay a fine.
Restraining Orders against Domestic Violence
Overview of Domestic Violence
For a person to get a restraining order against a person by citing domestic abuse, they must prove the existence of the abuse. Domestic violence involves both physical and emotional abuse. The abuser and the abused must be involved in an intimate relationship. The law describes an intimate relationship as one where the people involved are: Married, domestic partners, dating or dated. Also, people that share a child live together or are relatives either through blood or marriage.
According to the law, abuse involves:
- Hurting or attempting to hurt a person recklessly or intentionally physically
- Sexually assaulting a person
- Causing fear that the person or another will get hurt especially through threats
- Hitting, harassing, stalking, threatening, destruction of personal property, among other acts.
- Verbal and emotional abuse as well as psychological
This kind of order is issued by the court to protect individuals from threats of abuse. Alternatively, abuse from a person they are in a close relationship with. A person can request to get a restraining order against a close relationship if the person is abusive or threatens to abuse you. Moreover, the abuser and the abused have a close relationship, as discussed earlier.
A parent of a child receiving threats or abuse can file a restraining order on behalf of their child against the abuser to protect them. Children that are 12 years or more are recognized by the law to be able to file the restraining orders themselves directly.
What a Domestic Restraining Order Cannot Do
It is, however, important to note a few things that a restraining order is not capable of doing. It cannot bring an end to a marriage or a domestic partnership. Equally, it does not establish who the parents of a child are.
Various Types of Restraining Orders for Domestic Violence
There are four types of restraining orders under domestic violence once. These are:
- Emergency Protective Orders (EPO)
These are restraining orders that only law enforcement officers can request a judge to issue. For these kinds of orders, the judges are available round the clock to issue when needed. Most officers, upon responding to a domestic violence situation, may find it necessary to request a restraining order given the situation. The orders are issued immediately and can last for seven days.
- Temporary Restraining Order (TRO)
The person requesting the order goes to court and narrates to the judge the whole story and the reasons they need a protective order. If the judge believes them, they move to issue a temporary restraining order. These types of orders are valid for only 20 to 25 days until both parties appear in court.
- Permanent Restraining Order
Attending a hearing on the Temporary Restraining Order, the judge may find it necessary to issue a permanent restraining order. Although the orders are called permanent, they only last for five years, and upon expiry, the protected person can apply for renewal.
- Stay away or Criminal Protective Orders
Cases where there have been reports of a series of domestic violence incidents, the district attorney can file charges to protect the abused. This starts a criminal case proceeding, and the court issues the abused criminal protective orders to protect them against the abuser.
Elder or Dependent Abuse Restraining Orders
To ask for an elder abuse restraining order, the person must be 65 years or older. Subsequently, the person requesting must be aged between 18 and 64 and has specific physical or mental disabilities that prevent them from doing regular activities to protect themselves.
These individuals must be victims of abandonment or neglect, financial and physical abuse, and deprivation of basic necessities by the caregiver. Also, the person may be receiving treatment that is mentally and physically hurtful.
Types of Restraining Orders on Elder Abuse
Like in domestic violence restraining orders, the various kinds of restraining orders for elder abuse are the same.
The Process of Getting a Restraining Order for Domestic Violence and Elder Abuse Violence
When an individual seeks a restraining order against domestic violence or elder abuse, they must go to the court and file forms. The forms in the court narrate the orders they are seeking and their reasons. The steps followed are:
- The person requesting the restraining orders goes to court and files are given forms. The person is charged no fees for this
- The judge usually has until the following business day to issue an order or deny it
- Should the judge issue the orders, he or she begins by issuing temporary ones. The orders issued order the restrained person from making any contact with the protected person or their family. The orders will also outline who can use the home and who can live, among other instructions
- The person asking for protection must serve the restrained individual with a copy of the court order before the hearing date. The orders are expected to be served by hand.
- The restrained individual is allowed by the law to file an answer to the order and narrate their story
- When the court date comes, both sides must attend court. Should the protected person fail to attend court, the validity of the temporary restraining order comes to an end, and it is not renewable. Should the restrained person fail to attend court, their story will not be heard nor taken into account.
- During the hearing, the judge makes a decision to continue with the order by issuing a permanent order lasting five years or canceling it.
Civil Harassment Restraining Orders
If you experience threats, harassment, or stalking from a person not known to you, one can file for a civil harassment restraining order. According to the law, civil harassment is defined as:
- Illegal harassment such as battery, assault, or stalking
- Existence of real threat to use violence and
- Threats of violence designed to scare a person without a valid reason severely
In this case, a credible threat means when a person intentionally says things or acts in ways that would reasonably cause another to get scared. The threats involved include stalking, harassing calls, harassing messages either via phone or email over a period of time.
To file a civil restraining order, the person you are filing it against is not any of the ones described to be in a close relationship with you.
A civil harassment restraining order is usually filed against neighbors, friends, or roommates. Also, the orders can be taken against family members that are removed from you at least more than two degrees, such as uncles, distant relatives, among others.
Workplace Violence Restraining Order
A person can apply for a workplace restraining order if they are: employers or an employer asking for a restraining order to protect their employees. The employee should be stalked, harassed, or threatened at the workplace.
Employees are not allowed by the law to ask for workplace restraining orders, but instead, they can apply for a civil restraining order.
What an Employer must Show to Get a Workplace Restraining Order
For any employer to obtain a workplace violence restraining order, they must prove:
- That their employee has suffered illegal violence such as stalking, battery or assault
- The unlawful acts were carried out at the workplace
- That the conduct is prohibited for legitimate dispute resolutions
- The accused person is engaged in an activity that is constitutionally protected.
What a Workplace Violence Restraining Order Does
This order protects the person therein and orders the restrained person from having contact with protected employees, any member of the employee’s family as well as fellow employees. Additionally, the restrained person is prohibited from going near the employee, their children, family members, or colleagues. The restrained person must keep off the employee's place of work, school, or where the children of the employee attend school. Subsequently, the restrained person must not hold a firearm.
Types of Workplace Violence Restraining Orders
Like in the case of domestic violence and elder abuse restraining orders, there are various types of restraining orders under workplace violence restraining orders and orders are similar. They include:
- Temporary restraining orders– an employer, in this case, will go to the courthouse, fill documents, and narrate why they believe their employee needs a restraining order. Should the judge believe him, the order is issued that is valid until the hearing of the case. The validity of the order is between 15 days to 25 days.
- Permanent Restraining Order– regardless of whether a judge will issue a temporary restraining order, the court clerk sets up a date for the court to hear the case. If the judge is convinced, he or she may issue the employer with a permanent restraining order that lasts up to three years. If the validity time-lapses and the threat still are valid, the order can be renewed.
- Criminal Protective Order– if there has been reported series of violence at work, the District Attorney will file criminal charges against the perpetrator of the violence. As the criminal proceedings go on, the court will automatically issue the defendant with a restraining order to protect them.
The Process of Getting a Workplace Restraining Order
An employer on moving to the court to ask for a workplace violence restraining order, he is expected to file some court forms. The forms instruct the judge on the orders applied for and the reason for it. After filing, the general steps followed are:
- The employer files the court forms to request for a restraining order
- If the employer requests for a temporary restraining order, the judge has until the following business day to issue the order or deny it.
- Should the judge decide to issue the requested orders, they first begin with temporary orders that are valid until a court hearing date is established. The temporary orders will have instructions for the restrained person. Some of these instructions will be ordering him or her to keep a distance from the protected person or to avoid contact with the protected individual.
- The employer proceeds to serve the restrained person with a copy of the orders. The orders must be delivered by hand.
- During the date for the hearing, the restrained person, the protected employer, and the employee must attend court. Should the employer fail to attend court, the validity of the restraining orders ends immediately, and there is no possibility of others being issued. Should the restrained person fail to attend court, their side of the story will not be heard. This will result in the continuance of the restraining orders.
- After the hearing, the judge makes a decision to uphold the temporary restraining orders or give alternative restraining orders or deny the request. If a permanent restraining order is issued, it will last for three years.
Why People Seek Restraining Orders
Apart from the above legally mentioned circumstances where people seek restraining orders, individuals have been known to bring forth malicious accusations against others. If one has a normal misunderstanding or does not get their way, out of revenge, they can fabricate lies to frustrate the other person. An aggrieved partner going through a divorce or separation may want to do this to punish the other partner. They understand that a restraining order can affect the divorce case as well as a child custody case. If you are issued with a restraining order, avoid challenging it out of anger but use the proper channels. Never ignore the order as well because it can lead to a permanent restraining order but instead consult a lawyer in order to challenge it in court.
Find an Attorney Near Me
Being issued with a restraining order can negatively affect your daily life. A person can have a strained relationship with their children or even miss the comfort of living in their home. Sometimes a person can seek a restraining order against another out of malicious revenge. It is possible to fight against a restraining order and get it lifted. If you have been issued with a restraining order, you need to get in touch with an experienced attorney to help you fight the allegations and avoid permanent orders. Get in touch with us at Los Angeles Criminal Attorney, and we will gladly help you prepare your defense. Call us today at 424-333-0943 and let us help you win.