California has put numerous efforts into dealing with domestic violence cases in the state. The court issues restraining orders against the perpetrators of domestic violence. This discourages them from contacting the victims. A person undergoing domestic violence can petition the court to issue the order and offer protection from their abuser.
If you obtain a domestic violence restraining order against your abuser, you can protect yourself from abuse. Additionally, it can give you the upper hand by ordering your children to be removed from the abuser’s care and placed with you.
Unfortunately, the results can be devastating if another person files a restraining order against you. You must follow strict terms and conditions, failing which you could face criminal charges. Seeking legal guidance is critical when you are dealing with a restraining order.
At California Criminal Lawyer Group, we understand the immense stress that domestic violence issues can bring to your life. Our top-notch attorneys offer legal guidance for anyone seeking a restraining order or fighting against one in Anaheim, CA.
An Overview of Restraining Orders
A restraining order forbids a person from harassing or threatening another individual. The law recognizes several types of restraining orders:
Elder Abuse Restraining Order
An elder can file a restraining order against a family member or caregiver. An elder is a person over the age of sixty-five. The court will issue this order if the elder is a victim of neglect, abuse, or injury by a caregiver.
Civil Harassment Restraining Order
The court will issue a civil harassment restraining order for a victim of harassment, stalking, or abuse. The civil harassment order is given when the abuser and the victim do not have a personal relationship that could constitute domestic violence.
Domestic Violence Restraining Order
Instances of domestic violence are common in California. The court can issue you a restraining order if you are a domestic violence victim. Harassment or abuse from the following individuals counts as domestic violence.
- A former or current spouse.
- The mother or father of your minor child.
- A blood relative.
- A domestic partner or cohabitant.
The DVRO is a civil court order signed by a judge, and it works to stop domestic abuse and protect victims. Victims of domestic violence suffer these forms of crimes:
- Sexual assault.
- Physical injuries.
Types of Domestic Violence Restraining Orders
A judge can issue any of the following restraining orders to victims of domestic violence in California:
Emergency Protective Order
Law enforcement officers are the first to respond to domestic violence concerns in California. If you are in danger after the response, the court can issue an emergency restraining order. The officer will assert that you are in danger by reviewing your complaint and the threats to your safety.
An emergency protective order is effective when issued by a judge or commissioner. The EPO lasts for up to seven days. The main purpose of issuing a protective order is to provide enough support for victims until they apply for a domestic violence restraining order. An emergency protective order serves the following purposes:
- Protects a victim from contact with the abuser.
- Protects a victim from further domestic violence.
- Orders the abuser to maintain a reasonable distance between them and the victim.
- Requires the abuser to relocate and move out of the home they share with the alleged victim.
- Mandate the victim to take custody of children involved in domestic violence.
The following aspects should be included in a domestic violence order:
- A statement indicating the elements that the order must assert.
- The time and date until which the order will last.
- Address of the court for the district that endangered the child.
- A statement giving direction to the victim about what they must do to maintain protection after the emergency protective order has expired.
Although obtaining an emergency protective order is critical for a domestic violence victim, there are limitations to what the order can do. An EPO cannot do any of the following:
- Establish custody and visitation arrangements between you and the abuser.
- End your marriage or domestic partnership.
The consequences of having an emergency protective order issued against you can be devastating. Fortunately, it is possible to contest the order. In this case, the order can be removed completely or modified.
Temporary Restraining Order
A victim of domestic violence files a temporary restraining order. Additionally, you can file an order against an individual who threatens your safety. The restraining order will protect you from further abuse and contact with the abuser.
You must appear in court to present your concerns if you want a restraining order against your spouse or a family member. Appearing in court allows you to fill in the documents required for the order.
When you seek a restraining order, you must explain the events leading up to the domestic violence report. Often, the court will issue a TRO if you are in immediate danger. A temporary restraining order protects you for up to 25 days before your hearing. A hearing for a temporary restraining order helps determine the need for a permanent one.
With sufficient facts to prove that you are a danger to another person, the court can issue the TRO without your knowledge. However, the order will not go into effect until you receive the notice. This allows you to follow the conditions indicated in the TRO.
A temporary restraining order will indicate the date of your hearing, which is the same as its expiration date. If another person obtains a temporary domestic violence restraining order against you, you must:
- Not follow, threaten, assault, or disturb their peace.
- Avoid contacting the person.
- Vacate the home you share with the person.
- Attend a batterers’ program.
- Give up custody of minor children you share with the victim.
Domestic Violence Permanent Restraining Order
The court will issue a permanent restraining order after a hearing. Permanent restraining orders last for up to five years or more. The exact duration of the order depends on the circumstances of the case. This restraining order clearly outlines the types of conduct that are prohibited. The PRO will indicate the distance an abuser must keep from the victim, among other things.
When your PRO expires, you can return to court to have it extended. The court will agree to an extension in cases where a victim is still in danger.
Process of Obtaining the Restraining Order
The court may take several weeks or months to finalize your restraining order. The following are steps to obtaining a domestic violence restraining order:
Request for a Restraining Order
The first step in obtaining a restraining order is filling out a restraining order form. If you are in danger, you can request a temporary restraining order until your hearing is scheduled.
After you file all the relevant forms, the court will give you a hearing date. It would be wise to file for the order in person or with the guidance of a domestic violence defense lawyer.
Serve the Abuser
Your abuser must be notified that you are filing a restraining order against them. Therefore, there is a deadline by which they must be served. After receiving the notice of a restraining order, an alleged abuser must respond through a declaration.
Attend the Hearing
The judge will decide on a restraining order when you attend the hearing. At the hearing, you must explain to the court why you need protection from your alleged abuser. You can present physical evidence, a police report, and witness testimony. The judge can issue or deny a permanent restraining order at the hearing.
Protections Offered by a Domestic Violence Restraining Order
Issuance of a domestic violence restraining order can:
- Order the alleged abuser to avoid contacting, threatening, stalking, abusing, or harassing you and your family members.
- Grant you the exclusive care of an animal owned by you, your abuser, or a child residing in either of the households.
- Order an abuser to be removed from a residence that you share.
- Prohibit the abuser from purchasing or possessing a firearm.
- Order the abuser to pay spousal support or child support. This is possible if you are married to the abuser.
- Grant you possession of things that you jointly own with the abuser. The court could also order your abuser to pay the debts associated with the items you take.
- Order the abuser to pay the costs associated with the abuse. If you suffered physical injuries from domestic violence, the abuser must pay for your medical bills. In addition, the court may order that they pay for the lost wages and emotional suffering they caused you.
- Order the abuser to pay your attorney's fees. If the abuser earns more than you, they may be ordered to pay the attorney fee you incurred to file the domestic violence case and obtain the restraining order.
- Make changes to child custody and visitation. If you and the abuser have child custody arrangements, they could seek to modify them after issuing a restraining order. This is done to ensure the safety of the children and avoid contact between you and your abuser.
Violation of a Restraining Order
If the court issues a restraining order against you, you must carefully read the terms. Additionally, you must ensure that you follow through with the rules. Even when you view these conditions as unfair, you must observe them.
Under California Penal Code 273.6, violating a court-ordered restraining order is a crime. Restraining orders serve to protect victims of domestic violence. The court will only issue the order and set specific conditions depending on its findings about the domestic violence issue.
Common ways through which you can violate a domestic violence restraining order include:
- Failing to leave the home you share with the victim of domestic violence
- Attempts at direct or indirect contact with the other person
- Engaging in further abusive conduct against the person who obtained the order
Violating a restraining order will result in an arrest and criminal charges. The prosecuting attorney must prove the following elements to establish your guilt:
- The court issued a restraining order against you. A restraining order is valid when the court issues it.
- You knew about the order. You must be served in person even when the court issues an order. This helps ensure that you receive the notice and understand what is expected.
- You could follow the terms of the order.
- You willfully violated the restraining order.
A restraining order violation is a misdemeanor. A conviction for the crime will result in a one-year jail sentence and a $1,000 fine. In addition to incarceration and fines, violating a restraining order can result in losing your gun rights. The court will mandate that you surrender your firearms and avoid purchasing or using other firearms.
Even in cases where your domestic violence case is resolved, the court can still punish you for violating the restraining order. When you face charges for violating California PC 273.6, you will have an opportunity to defend yourself. Common legal defenses you can use in your case include the following:
- You did not violate the order. The evidence of physical contact is not necessary to prove that you violated a restraining order. A skilled criminal lawyer can help you present evidence to show that you did not engage in the alleged behavior.
- The order was not served properly. A restraining order becomes effective when it is presented to you. If you did not receive or receive the order after violating the terms, you could not be found guilty of violating them.
- Insufficient evidence. Before you are found guilty of violating a restraining order, the prosecution must prove all the elements of Penal Code 273.6. You cannot be found guilty of the crime without reasonable doubt about one or more elements.
- The violation was not intended. The prosecution must prove you willfully violated the restraining order before your conviction under PC 273.6. Therefore, if you prove the violation was accidental, you can avoid liability for the crime.
Frequently Asked Questions on Restraining Orders in Domestic Violence Cases
You will need a restraining order if you are a victim of domestic violence. The court can also issue an order against you if you are accused of domestic violence in California. The thought of seeking a protective order or battling its issuance can bring forth extreme confusion. The following are frequently asked questions on restraining orders in California:
Can I receive financial help after obtaining a restraining order?
Seeking a restraining order against a spouse or parent of your child cannot eliminate their obligation towards you or their child. In the case of a restraining order, you can ask the court to remove the child from the abuser’s home and place them with you. If you do not have a child custody order, the judge can order you to go to family court to resolve the matter.
When deciding on child support in domestic violence cases, the judge will consider how a lack of support could endanger the child. If you are married to the alleged abuser, obtaining a restraining order can leave you in a financial struggle. In this case, the court can mandate that you be paid spousal support.
Can I obtain a restraining order against a person who lives outside California?
When an abuser lives out of state, the judge may lack the jurisdiction to issue a domestic violence restraining order. Some ways courts in California can gain personal jurisdiction are when:
- The abuser is connected to California. This could be through constant travel for family visitation or work.
- The abuse happened in California.
- When you file a petition while the abuser is in California.
If I am a victim of domestic violence, can I violate a restraining order?
The court protects victims of domestic violence with restraining orders. A victim who is named as the protected person in the order cannot be held legally liable for contacting the restrained person. California Penal Code 273.6 only applies to the person against whom the restraining order was taken.
However, a victim shouldn't contact a restrained person. This is because the restrained person can present this as evidence to show that the alleged victim does not fear them and the order is unnecessary.
What happens when my abuser appears at the restraining order hearing?
When a person is served with a restraining order, they must give a response, either accepting liability or denying the accounts given when the order was filed. If your abuser is present at the court hearing, the court will receive their response. Sometimes, the abuser will file their declaration on the hearing date. If this happens, you can ask the judge for more time to look through it and plan your case appropriately.
When your case is called, the judge will ask for the story and the names of the abusers. If either side has presented a witness, the witness will present their account. If you have other pending issues with the abuser, you can ask the judge to review your request and provide appropriate feedback.
Some of the issues that could arise in a restraining order hearing include child custody and alimony. Additionally, ownership of the family home could arise.
If the abuser fails to appear in court, your hearing will be shorter. This is because there will be no opposition. When a judge grants you a restraining order, they will indicate the date until which the order will last.
What are my options if my domestic violence restraining order request is denied?
For several reasons, a judge can deny your domestic violence restraining order request. If your relationship with the abuser does not qualify for the DVO, the court will deny your request. Additionally, if no evidence proves you are in danger of domestic violence, your case is dismissed.
If a judge denies your request for a restraining order, you can explore other ways of staying safe. First, you can contact domestic violence resource centers for support in developing a safety plan.
Another way to stay safe is to seek additional evidence and return to court. In your new hearing, you can present additional evidence to show the need for a restraining order against your abuser.
Can I extend a restraining order?
When you attend a hearing, and the court grants you the restraining order, the judge indicates how long the order must last. If you want the order to last longer, you can seek a modification. If the court believes your abuser could engage in abusive conduct again, they can make the restraining order last up to three years or more.
However, you must fill out Form DV-700, a request to renew the restraining order. Your attorney can then submit the documents to the district attorney or court for consideration.
Find a Competent Domestic Violence Lawyer Near Me
In a domestic violence case, a restraining order protects the victim. The chance of repeated abuse is minimal when the order is in place. If you take out a restraining order against another person, they must avoid contact with you. Contact, in this case, can be physical or through electronic communication.
If another person seeks a restraining order against you, you must follow the conditions of the order. This helps you avoid further criminal charges for violating a court order. The moments after you file for a restraining order or are served with one can be confusing.
You will require the guidance of a knowledgeable domestic violence lawyer when you file a restraining order or are fighting one. Your attorney will help you gather the necessary evidence to disapprove of the need for the order or proof showing why you need to have the order put in place.
At California Criminal Lawyer Group, we offer expert legal guidance to all our clients battling or seeking a restraining order in Anaheim, CA. Contact us at 714-766-0965 and allow us to guide you through the situation.