A restraining order, also known as a protective order, is a civil order issued by a court to protect a person from harassment, violence, or threats of violence from another person. A restraining order may place restrictions on the restrained person, such as ordering him or her to stay away from the victim, or from the victim's home, place of employment, or school. A restraining order may also order the restrained person to have no contact with the victim, either directly or indirectly.
A restraining order is a serious matter and can have a lasting impact on your life. If you are facing restraining orders, you should contact a restraining order attorney as soon as possible. Our restraining order attorneys at Foos Gavin Law Firm in Sacramento, California can help you protect your rights and fight the restraining order.
What are Restraining Orders?
A restraining order is a legal order issued by a court that requires one person to stop harming another. The person who is harmed is called the protected person. The person who is ordered to stop harming the protected person is called the restrained person. There are two types of restraining orders in California:
- Emergency Protective Orders (EPOs)
- Temporary Restraining Orders (TROs)
These Protective Orders are issued when the police believe that someone is in immediate danger of being harmed. EPOs are usually issued for a period of 72 hours but can be extended for up to 7 days. EPOs are usually issued by the Court when a party has been arrested as well.
Temporary Restraining Orders (TROs) are issued when the Petitioner has applied to the Court for protection, and the Judge believes that the restraining should be issued at least for a temporary period of time. TROs are usually issued for a period of 20 days, and only until there is a hearing where the parties appear before a Judge.
To get a restraining order, the protected person must file a petition with the court. The petition must state that the protected person is afraid of the restrained person and explain why. If the judge believes that the protected person is in danger, the judge will issue an EPO or TRO. The standard that the Petitioner must meet is low, only that there is a reasonable belief that harassment or violence has occurred.
The order will state the specific ways in which the restrained person must stay away from the protected person. The order will also state when the restraining order expires. The restrained person must be served with a copy of the order and if served, will be required to obey it. If the restrained person violates the order, he or she can be arrested and charged with a crime.
Common Types of Restraining Orders
There are two common types of restraining orders: domestic violence restraining orders, and civil harassment restraining orders.
Domestic Violence Restraining Order
A domestic violence restraining order is a court order that protects victims of domestic violence from their abusers. It can order the abuser to stay away from the victim, have no contact with the victim, and not come within a certain distance of the victim. It can also order the abuser to move out of the home, make orders as to custody of the children, and order the abuser to pay child support. A prohibition from possessing firearms is always ordered.
A person can request a domestic violence restraining order if:
- The person has been the victim of family violence, sexual assault, or stalking, or is in danger of being the victim of family violence, sexual assault, or stalking. Also, if the person has been the recipient of credible threats of violence.
- The person is related to the abuser by blood or adoption
- The person is or was married to the abuser
- The person is or was dating or engaged to the abuser
- The person has a child with the abuser
- The person lives with the abuser or has lived with the abuser in the past
Civil Harassment Restraining Orders
There are two types of civil harassment restraining orders: the emergency civil harassment restraining order and the civil harassment restraining order.
- An emergency civil harassment restraining order ⏤ is a court order made to stop someone from harassing you. An emergency civil harassment restraining order is called a "temporary restraining order" or "TRO." This type of restraining order is made by the judge, who reads the papers and determines whether is a reasonable belief of harassment or violence. The standard is quite a bit lower than what must be proven at the upcoming hearing. The judge can make the order without giving any notice to the person being restrained if the judge decides that giving notice would be dangerous or would not stop the harassment. The TRO lasts only until the judge holds a hearing.
- A civil harassment restraining order ⏤ is a court order made to stop someone from harassing you. A civil harassment restraining order is also called a "permanent restraining order". This type of restraining order is made only after the court holds a hearing. The person who is harassing you has the right to be at the hearing. If the person being restrained is not served with notice of the hearing, the judge will not make an order. This type of restraining order lasts up to five years.
How to Get a Protective Order
The process for getting a protective order in California depends on the type of protective order that you are seeking.
Emergency Protective Orders (EPOs)
If you are in immediate danger of domestic violence, you can request an EPO from the police or a judge.
If you request an EPO from the police, they will contact a judge and ask him or her to issue the EPO. The judge will then decide whether or not to issue the EPO.
If the judge decides to issue the EPO, he or she will give the EPO to the police. The police will then serve the EPO on the person who is accused of domestic violence.
Criminal Protective Orders (CPOs)
If you are the victim of domestic violence and the person who committed the violence is being charged with a crime, you do not need to do anything to get a CPO.
The prosecutor will ask the judge to issue a CPO as part of the criminal case.
If the judge decides to issue the CPO, he or she will give the CPO to the court bailiff. The bailiff will then serve the CPO on the person at the court hearing, who is accused of domestic violence.
Civil Protective Orders (CPOs)
If you are the victim of domestic violence and the person who committed the violence is not being charged with a crime, you will need to file a civil lawsuit to get a CPO.
You will need to file the lawsuit in the county where you live or where the violence occurred.
You will need to serve the person who is accused of domestic violence with the lawsuit.
If the person who is accused of domestic violence does not respond to the lawsuit, you can ask the judge to issue a default judgment. This means that the judge will issue a CPO without the person who is accused of domestic violence having a chance to defend himself or herself.
If the person who is accused of domestic violence does respond to the lawsuit, the judge will hold a hearing. At the hearing, both you and the person who is accused of domestic violence will have a chance to present evidence and argue your case.
After the hearing, the judge will decide whether or not to issue a CPO.
What Can a Protective Order Do?
The specific provisions of a protective order depend on the type of protective order and the circumstances of the case. However, all protective orders contain provisions that:
- Order the person who is accused of domestic violence to stay away from the victim
- Order the person who is accused of domestic violence to not contact the victim
- Order the person who is accused of domestic violence to move out of the home
- Give the victim custody of any children
- Give the victim possession of any property
- Order the recipient to surrender all firearms, and to not possess firearms
In some cases, a protective order may also:
- Order the person who is accused of domestic violence to attend counseling
What to Do if you Have Been Served with a Restraining Order
- Hire an attorney — Restraining orders can be complex. That is why it is advisable to hire an attorney to help you review the terms and offer legal guidance.
- Review the papers — It is essential to review the papers to determine exactly what the restraining order requires you to do.
- Comply with the restraining order terms to avoid more legal problems.
- Avoid violating the restraining order — Violating the order could result in your arrest and criminal charges.
- Do not contact the person who filed the restraining order — This will usually be termed as violating the protective order
- Appear at the restraining order hearing
How to Challenge a Restraining Order
If you have been served with a restraining order, you have the right to challenge the order in court. To do so, you can file a response to the Restraining Order. This document tells the court that you do not agree with the restraining order and why you believe it should be removed. The court will then hold a hearing where both you and the person who filed the restraining order (the petitioner) will have a chance to present evidence and argue your respective positions. The judge will then decide whether to vacate (remove) the restraining order or leave it in place.
Violating a Restraining Or Protective Order in California
Penal Code 273.6 PC makes it a crime for a person to violate a restraining, protective, or stay-away order. This section applies to:
- permanent restraining orders
Each violation of a restraining order is a misdemeanor offense, punishable by up to one year in county jail.
However, if it is the person's second violation of restraining order within one year, and it is a “serious” violation, then the offense is a “wobbler”. A wobbler can be charged as either a misdemeanor or a felony, at the prosecutor's discretion. Examples of violations of a protective order include:
- A defendant goes to a victim's workplace in violation of a stay-away order
- A defendant calls the victim at home in violation of a no-contact order
- A defendant threatens the victim via text in violation of a protective order
If you violate a restraining order, you may be charged with a misdemeanor or a felony. The penalties for a misdemeanor conviction include up to one year in jail and a fine of up to $1,000. The penalties for a felony conviction include up to five years in prison and a fine of up to $5,000.
What Must the Prosecutor Prove?
There are four elements that a prosecutor should prove for a defendant to be charged with a violation of a restraining order:
- That the defendant was subject to a valid restraining order
- That the defendant knew of the existence of the restraining order
- That the defendant willfully violated the terms of the restraining order
- That the defendant's violation of the restraining order caused actual harm or resulted in a credible threat of harm to the victim
Defenses to Fight PC 273.6 Violating a Restraining Order Charge
There are a few defenses that can be used to fight a PC 273.6 charge. One is that the defendant did not violate the terms of the restraining order. This can be shown by evidence that the defendant was not in the restricted area or by witness testimony that the defendant did not do anything prohibited by the order.
Another defense is that the defendant had a good reason for violating the restraining order. This might be if the defendant needed to enter the restricted area to get to work or to pick up a child from school. The defendant would need to show that there was no other way to achieve the same goal without violating the restraining order.
Finally, the defendant can argue that the restraining order is invalid. This might be the case if the order was never served on the defendant or if it was not properly filed with the court.
Other defenses include:
- You did not have actual notice of the restraining order
- You were not given adequate notice of the hearing at which the restraining order was entered
- You did not have an opportunity to participate in the hearing
- The order was issued without a hearing
- The order was not supported by substantial evidence
- The order is unclear or ambiguous
- The order was issued in violation of the due process
- The order was obtained by fraud
- You acted in good faith and with a reasonable belief that you were not violating the order
- The alleged victim or the victim’s agent or servant engaged in conduct that caused you to reasonably believe that the order was no longer in effect
- The order was issued in violation of the United States Constitution or the California Constitution
Can a domestic violence restraining order affect my gun rights?
Note that the California Domestic Violence Prevention Act has a significant effect on your gun rights. This act prohibits anyone with a restraining order from owning or possessing a firearm.
A violation of the provisions of the California Domestic Violence Prevention Act is a felony. This means that a domestic violence restraining order not only affects your ability to possess a firearm, but it also will result in a felony conviction if you are caught with one. This felony conviction will prohibit you from ever owning or possessing a firearm in the future.
If you have a domestic violence restraining order against you, you must not own or possess any firearms. If you do, you could be facing serious criminal charges.
Can a person get probation for violating a restraining order?
Probation is a sentence that can be imposed after someone is convicted of a crime. It allows a person to remain in the community, under the supervision of a probation officer, instead of going to jail or prison. Probation can be imposed for different crimes, including violating Penal Code 273.6. Some of the standard terms and conditions of probation include:
- Regular check-ins with a probation officer
- Random drug testing
- Completion of a drug treatment program
- Restrictions on travel
- Community service
- A prohibition from owning a firearm
What Is the difference between a restraining order and a protective order?
There is no difference. Protective order and restraining order are two terms for the same legal action.
How do I serve someone with a restraining order in California?
Restraining orders must be served on the person named in the order by a law enforcement officer. The process for serving a restraining order varies by county, but typically involves the law enforcement officer delivering the order to the person named in the order and providing the person with a copy of the order.
How do I enforce a restraining order in California?
If the person named in the restraining order violates the order, the victim can contact law enforcement. The law enforcement officer will then decide whether to arrest the person for violating the order.
What happens after I file for a restraining order in California?
The next step is a court hearing. A temporary restraining order may be issued without a hearing if the court finds that there is an immediate and present danger of abuse. The respondent will be served with the temporary restraining order and will be given notice of the hearing. At the hearing, the judge will decide whether to issue a permanent restraining order. The judge will consider the evidence presented by both sides and will decide based on the preponderance of the evidence. This means that the judge will issue the restraining order if it is more likely than not that the respondent has committed acts of abuse.
Can I file for a restraining order without an attorney in California?
Yes. You do not need an attorney to file for a restraining order, but it is strongly recommended. The process can be complex, and an experienced attorney can help ensure that you take the right steps and present the strongest possible case.
If I have a restraining order against me, can I go to jail?
If you violate a restraining order, you can be arrested and charged with a crime. If you are convicted, you could be sentenced to jail.
What is the process for getting a restraining order?
The process for getting a restraining order is as follows:
- You must apply with the court
- A judge will review your application and decide whether to issue a temporary restraining order
- If the judge issues a temporary restraining order, the order will be served on the person you are seeking protection from
- A hearing will be held within 10 days of the order being served
- At the hearing, both you and the person you are seeking protection from will have an opportunity to present evidence and testimony
- After the hearing, the judge will decide whether to issue a final restraining order
Can I get a restraining order if I am not a citizen of the United States?
Yes. You do not have to be a citizen of the United States to get a restraining order.
Can I get a restraining order if I am under the age of 18?
Yes. You do not have to be 18 years of age to get a restraining order.
Find a Sacramento Criminal Defense Attorney Near Me
If you have a restraining order against you, you should contact a criminal defense lawyer to help you understand and fight the restraining order. If you are in the Sacramento area, get in touch with Foos Gavin Law Firm at 916-779-3500 to see how we can help you.