When you are in an intimate relationship with a person or have had one, various factors can strain it, resulting in misunderstandings. Out of the disagreements, domestic violence may arise, with one of the partners being the aggressor. If this happens, the alleged victim may obtain a domestic restraining order to protect themselves from the alleged aggressor. Typically, domestic restraining orders are issued where there is violence between current or ex-spouses, domestic partners, girlfriends, and boyfriends. Domestic restraining orders can also be obtained against a blood relative. If a person feels threatened by a close relative, they can ask the court to protect them by issuing a protective order.
Irrespective of why the domestic protective order is obtained, its violation can adversely affect you in various ways. When accused of violating a domestic protective order, you will need a criminal attorney to fight against the allegations and get your freedom back. Talking to the Los Angeles Criminal Lawyer guides you in understanding the implications of the offense and how to fight it in court.
Types of Restraining Order
When a current or ex intimate partner or a family member wants protection from you citing violence, they apply for a protective order from the court. In California, you can seek any of the following restraining orders:
Emergency Protective Orders (EPO)
According to section 6250, in the family code in California, a law officer can ask the court to grant an emergency protective order for a potential victim. If an officer believes that the individual is at risk of domestic abuse from another, they can seek orders to protect them.
EPO’s are only sought by officers of the law against a person they believe to be a threat to another. For instance, if a neighbor calls the police to report a domestic altercation, the officers on arriving at the scene assess the situation. When they establish the victim needs protection from the abuser immediately, they will seek EPO on their behalf. Judges, in this case, are always available at any hour to issue this type of order on request by a police officer.
However, a judge must establish the following before issuing it according to section 6251 of the family code:
- The presence of sufficient evidence suggesting the immediate danger of violence,
- A minor is at risk of abuse or abduction,
- A dependent or older adult is faced with immediate danger,
- And the issuing of the EPO will protect the victim from harm or its repeat,
If these elements are satisfied, the judge will issue the protective order. An EPO becomes effective immediately and is enforced in a week. If the abuser shares a home with the victim, he or she can get ordered to move out of the house for the time the protective order is in effect.
It is essential to understand that even with an emergency restraining order, the alleged victim is only protected for a period as they apply for a temporary protective order.
Temporary Restraining Order (TRO)
When one person accuses another person of domestic violence, they may obtain a protective order against their abuser. A temporary protective order protects the alleged victim for a period not exceeding 25 days. When an alleged victim applies for this order, they must convince the court that they are in imminent danger of abuse from the other party.
As the TRO expires, a hearing is scheduled where the alleged victim must convince the court that they need a permanent protective order issued.
Permanent Protective Orders
This order is typically issued after a temporary protective order has been in place. Before it is released, there must be a hearing to determine if, indeed, the defendant is a danger to the alleged victim. At the trial, your lawyer represents you and argues against the issuance of the order. Your attorney will present evidence before the court to discredit allegations of violence and establish your innocence.
The alleged victim will also present evidence to show the defendant is abusive and the reason they need protection from them. The judge will listen to both sides and analyze the evidence presented before ruling. If the judge believes the alleged victim is in danger of abuse from the defendant, a permanent protective order is issued.
Permanent restraining orders cover varied periods depending on their type. In this case, when the case involves domestic violence, the order issued lasts for five years. The consequences of a permanent protective order are detrimental, making it imperative to defend your case against getting it.
What a Protective Order Entails
When you receive a restraining order, several things are included in it, depending on why it was applied. Restraining orders typically include the following:
Personal Conduct Orders
With these orders, particular acts against persons named in it as the protected parties are prohibited. Some of the things a restrained person gets ordered against doing include:
- Sending of messages either through phone, regular mail or emails,
- Avoiding any form of contact with the protected person that include calling them,
- Striking, attacking or battering the protected individual,
- Stalking the victim, harassing or threatening them,
- Sexually assaulting the victim,
- Destroying property belonging to the alleged victim or
- Causing disturbance against the protected persons.
Stay Away Orders
Protective orders can also include instructions for the restrained individual to keep a particular distance from:
- The protected persons as named in the restraining order,
- The place of residence of the secured party,
- The workplace of the protected individual,
- The school or child care facilities where the protected person’s children attend,
- The vehicle of the protected individual, and
- Other essential places the protected person frequents.
Move out or Residence Exclusion Orders
Sometimes, a protective order is obtained against a person living in the same home as the alleged victim. For instance, a wife can seek a restraining order from their physically abusive husband, whom they share the house with. In this case, the protective orders obtained may contain instructions asking the husband to leave home with only their clothing and personal effects until the hearing.
An elderly or dependent person can also file for protective orders against a person they live with or a caregiver living with them. If they feel abused by the person they depend on and live with them; they can get these kinds of restraining orders asking the abuser to leave home.
Types of Protective Orders in Domestic Violence Cases
Victims of domestic violence often obtain protective orders against their abusers. There are two types of protective orders in domestic violence cases. These include:
Domestic Violence Protective Order
Not everyone qualifies to obtain this type of order. However, if any of the following abuses one, they can get protection from them. Individuals that get served with a domestic protective order include persons that the victim has a close relationship with such as:
- Registered or married partners,
- Separated or divorced partners
- Current or ex-boyfriends and girlfriends,
- Persons that share a child,
- Persons living together or lived together and their situation is more than that of roommates,
- Closely related persons such as parents, siblings, or grandparents.
When any of the above persons feels you are a threat to their well being either physically or psychologically, they can seek restraining orders against you. When your partner or ex-partner succeeds in obtaining a restraining order, and it becomes permanent, it means you will stay away for five years. Fighting against getting a permanent restraining order is critical in avoiding the negative consequences, as discussed below.
A restraining order can, however, not do the following:
- It will not end your relationship, partnership, or marriage. Simply, a protective order is not a divorce.
- A protective order cannot be used to establish parentage or your children’s paternity. This means, if the court orders you to stay away from your children for their protection, it does not mean you are not the parent.
Elder or Dependent Abuse Protective Order
This is another type of domestic violence protective order. The persons that can obtain this order against you must be:
- 65 years or over or
- They are between eighteen and sixty-four years with a physical or mental disability that keeps them from doing normal activities by themselves or protecting themselves.
For these persons to obtain a protective order against you, they must show the court that:
- You physically or financially abuse them,
- You have neglected or abandoned them,
- You have treated them in a way that mentally and physically hurts them or
- You have deprived them of basic needs such as food, medical care, or clothing, among others. And that due to the deprivation, they have suffered physically and mentally.
If you are the primary caregiver of a dependent adult or elderly, you must be careful how you handle them. A small misunderstanding or suspicion can result in them applying a restraining order that will ruin your life.
Consequences of a Restraining Order
When a domestic protective order is issued against you, many adverse effects result. This makes it critical for you to fight against getting one by having a sound representation during the protective order hearing. Some of these consequences are:
You Lose Your Freedom
When a domestic protective order is obtained against you, in most cases, it bars you from going to the places the protected person goes to. For instance, if you enjoyed going to a particular restaurant, ran at a specific trail, or are members of the same club with the restrained person, you will not enjoy them anymore. A restraining order will require you to stay away from places the protected person frequents, and they may include the places you like. This means you lose the freedom to enjoy life as you like before the restraining order.
When the person that has obtained the protective order lives with you in the same home, you can be asked to move out. Getting kicked out of your home is not pleasant and also causes unexpected expenses. For the period you are ordered out of the residence, you will look for another place to live, increasing your costs. Additionally, you lose the comfort and privilege of your home by living with a friend or in a hotel.
Consequences with Children
When spouses fight and one partner obtains a restraining order against the other, it will affect the children and prevent the restrained person from seeing their children. Children require the love of both parents. When one of the parents is barred from seeing them or living in the same home, it affects the children psychologically. A protective order kicking you from your home means you and the children will not enjoy affection from each other as you previously did.
A protective order can also indicate that for the restrained person to see the children, it must be under supervision. This is an added cost that strains your finances, not to mention you are limited for the time to see them.
If a current or ex-partner obtains a protective order against you, you temporarily lose your right to have or own a gun until the case is determined. The court will order you to submit your firearms to the police department as you await the hearing and determination of your case. If you deal with weapons, you may be barred from running your business or having access to it. This will affect your livelihood, making it critical to fighting against the issuance of an order.
If you are a non-citizen seeking a green card, having a restraining order in your record can affect your status. Fighting against a protective order is critical in protecting your status and avoiding denial of the green card.
While issuing a restraining order, the judge can rule for the person to attend classes that help them deal with their situation. These may include anger management therapy, batterer’s intervention classes lasting 52 weeks, or parenting classes if children are victims of your abuse. The judge will decide how long you should attend the classes, and the cost of therapy is on you.
Consequences of Disobeying a Court Order
A protective order is a court-issued document that must be respected and obeyed. If you violate the terms in the order or disrespect it, you can face criminal charges according to PEN 273.6.
For you to be convicted of this crime; however, the prosecutor must prove that:
- The court lawfully issued the protective order,
- That you were aware of the restraining order,
- You were able to follow the order but,
- You willfully violated or disobeyed the order.
If the court finds you guilty of violating the protective order against you, the following misdemeanor penalties can be imposed against you:
- County jail imprisonment for a year or less,
- A fine not exceeding $1,000 in addition to the jail time or instead of it.
Disobeying a court protective order can also be a wobbler offense in California. This means that you can face misdemeanor or felony charges for the crime. If you have disobeyed a protective order before or in violating the order, you were violent; you can get charged with a felony. Felony penalties in this case include:
- State prison incarceration for not more than three years,
- A fine not exceeding $10,000 in addition to or instead of jail time.
What you Should Do to Fight Against the Protective Order Successfully
Before a permanent restraining order is issued, the court grants the alleged abuser with a temporary protective order. This is to allow you to prepare and fight against the issuance of a permanent protective order against you. When you receive the interim orders, you must do the following while preparing to fight a permanent one during the hearing:
- Obey the order. This is the most important thing because a violation will result in the above consequences. Follow the instructions in it and avoid trying to reason with the petitioner.
- Find a lawyer immediately to advise you and help prepare for the hearing.
- Collect evidence about the events referred to in the petition. These may include photos, clothes or videos, or other objects.
- If there are records relating to the issue like emails, phone records, letters, computer records, or GPS records, put them together. These records will help show where you were when the alleged incident occurred and can exonerate you from the protective order.
- List all the possible witnesses and share them with your attorney. Your lawyer will interview each one of them to see if they will help in your case or not.
After gathering all the possible evidence and studying the petitioner’s case, your lawyer will formulate various defense strategies. In some cases, your lawyer may approach the petitioner’s attorney to discuss the matter and settle it before the hearing.
If this is not possible, your attorney will defend you by citing false accusations and presenting the collected evidence supporting your case. The witnesses to your character and whereabouts will also be called to your defense. In most cases, you will be allowed to testify in court against the allegations by giving your narrative of the events that happened.
If the court is convinced that you are not a threat to the petitioner, the temporary restraining order is lifted. On the other hand, if you don’t win in the hearing, a permanent restraining order will be issued against you. Most domestic violence protective orders last for five years, causing adverse effects to you.
When you are accused of violating a protective order, you risk a jail sentence besides the other consequences. Disobeying a restraining order is a criminal offense in California requiring vigorous defense if you want to win. We at Los Angeles Criminal Lawyer understand your frustrations when individual rights are taken from you. Call us at 310-502-1314 and let us fight the allegations leveled against you.
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