Domestic violence is one of the problems bugging the criminal justice system, prompting courts to use strict measures such as restraining orders to ensure that the victims are safe from the perpetrator.
However, when you are on the receiving end of a restraining order, it could feel like another jail. You will have to watch your behavior to ensure you do not violate the terms of the permanent restraining order against you.
Contact The Los Angeles Criminal Defense Attorney if you receive a permanent restraining order against you. We can help you fight the restraining order, understand the possible violations, and defend yourself if you violate the terms of the order.
Understanding Restraining Orders in California
Courts use restraining orders to offer protection to victims of domestic violence. These orders help protect them from violence and threats of violence from the perpetrator. The common reasons someone could request a restraining order against you include:
You have abused or threatened to abuse the victim
You and the victim have a close relationship. A close relationship means that you are:
Married or are in a registered domestic partnership with the victim
You are divorced or separated from the victim
The victim is a current or former dating partner
You live together or used to live together with the victim (not merely as roommates)
You and the victim have a child together
You are the family of the victim
Parents can also file a restraining order to protect their children from abusers. The law also allows a child who is 12 years or older to file a restraining order against an abuser.
Restraining orders come with limitations to what you can and cannot do. Among the restrictions are:
You should not contact or go near the listed persons.
You are to stay away from the home, workplace, and schools where your children or their parents stay.
You are to move out of your house.
You are not supposed to have a gun (legal gun owners must turn in, sell or store their firearms. They also cannot buy firearms until the restraining order period ends)
You are to adhere to child custody, visitation, and child support orders.
You are to pay spousal or partner support as ordered by the court.
You are to stay away from pets you own
You are to transfer rights to accounts and phone numbers that you share with the victim.
You are to release or return certain property.
You must complete a 52-week batterer program.
Restraining orders are not restricted within state limits. You must inform law enforcement officials about the restraining order if you move to another state. Police officers in California are also permitted to enforce restraining orders issued from other states.
Restraining orders can be:
Emergency protective orders, which usually last up to seven days
Temporary restraining orders last between 20 to 25 days before a court hearing.
Permanent restraining orders last five years from the date of the temporary restraining order hearing, and the victim can ask for a renewal after the five-year period ends.
Criminal restraining orders
Responding to a Restraining Order
Receiving a restraining order can shock you, especially when you receive the notice of a permanent restraining order. It could mean that you cannot interact with your spouse, children, or important people in your life.
When someone files domestic violence against you, the court will probably issue the restraining order, which means false accusations could easily lead to an unfair restraining order.
Regardless, you must obey the terms of the restraining order, and any violation will land you in jail or leave you with stiffer penalties.
The first step you need to take after receiving the order is to read it carefully to understand the terms and conditions stipulated. You can consult with a restraining order attorney if you do not understand parts of the restraining order.
Some of the terms of the order could require moving out of the house you live in or dispose of your firearms. You, therefore, need to arrange for your accommodation for the next five years.
You can be ordered out of your home, even if you have a right of ownership over that house. The restraining order, however, does not strip your ownership rights to the home. Note that you cannot fight for your property at the restraining order hearing. Instead, you will have to file divorce or separation papers to begin the property division process.
Meanwhile, you have to leave your home and find another place where you will not contact the victim.
You will also receive a Notice of Court Hearing, informing you of when you should appear in court to contest the restraining order. Attending the hearing is in your best interests if you feel that the restraining order against you is unfair (for example, if the victim filed the request based on false allegations).
Note that, before the court issues a restraining order, it will consider the evidence presented by the person seeking the restraining order. And since this is not a criminal trial to establish your guilt or innocence, the court's goal is to protect the victim from further harm or the risk of harm. If you fail to appear in court, the judge will make a ruling without you.
You should also adhere to the terms of the restraining until the date of the hearing, even if you do not agree with these terms.
Responding to a Restraining Order
If you disagree with the restraining order, you need to file a response to the request for a domestic violence restraining order (Form DV-120) with the court clerk and serve the same to the person requesting the restraining order.
You should not serve this request to the person directly, as that would violate the terms of the temporary restraining order. Instead, serve it through a person 18 or above and have them fill out the form "Proof of Service by Mail” once he or she mails a copy of the response. You should file a copy of the form with the court clerk.
You might also need to file other forms in your response, depending on the protected person’s requests when filing for the restraining order. These forms include:
An income and expense declaration form or a simplified financial statement if the protected person is asking for child support and/or spousal or partner support
Additional forms from your local court (these will differ depending on your location)
Ensure that you make at least two copies of all the forms you fill. You will submit the originals to the court, one copy to the protected person, and the other one for yourself.
Once you file the required documentation alongside your response, you can begin preparing for the court hearing. Gather the relevant documents to support your case.
You will need to carry copies of all the documents and forms you filled and the evidence you have. The court also allows you to present witnesses. You could also present written witness statements (which you file together with the response) to support your case. Courts provide translators if you do not speak English or if you have a hearing impairment.
The judge will give a ruling based on the information each party provides. During the hearing, take your time to answer questions, seek clarification where needed, and address the judge instead of the protected person.
If the protected person presents false information, wait until they are done talking, and then raise your concerns. The judge could also address other issues such as child custody and visitation if you share parental rights with the protected person.
The judge will finalize the hearing with his or her decision on whether to issue the permanent restraining order. The possible outcomes of the hearing include:
The judge will grant the permanent restraining order as per the request of the protected person.
The judge will modify the order to include some of the terms the protected person asked for
The judge will nor issue the restraining order.
The judge will postpone the case because you (or the protected person) need more time to get an attorney or prepare your answer, the hearing is consuming more time, or the judge requires more information.
Postponement of the hearing will result in an extension of the temporary restraining order until the court issues the permanent order or decides the case does not require a protection order.
Violating a Restraining Order in California
California Penal Code 273.6 PC considers it a crime to violate a restraining order's terms or conditions. The prosecution will have to prove some aspects of the offense if it charges you with a restraining order violation. These elements include:
A court lawfully issued a restraining order
You were aware of the court order
You could obey the court order
You willfully violated the restraining order
You violate a restraining order if you willfully commit an act prohibited under the restraining order. For example, you will be guilty of violating the restraining order if you visit your former home to patch things up with your ex (who took a restraining order against you).
However, you are not violating your restraining order if you accidentally bump into the protected person in a public place.
Violation of a restraining order is a crime in California; therefore, you need to contact a criminal defense attorney to defend you during the case.
You can present several defenses to the offenses, including:
The restraining order was unlawful, perhaps due to a procedural error, or the absence of a legal basis for the restraining order.
You did not know of the existence of the restraining order against you.
You did not violate the restraining order on purpose.
You will face the following penalties if the court determines that you willfully violated a restraining order:
Incarceration for up to one year in county jail
A fine of up to $1,000
The first restraining order violation is a misdemeanor in California. Committing a second violation, which involves an act of violence, becomes a wobbler offense.
When you are convicted of a felony, you face an incarceration term of up to three years in state prison and a fine as high as $10,000.
The court can charge you with additional offenses after violating a restraining order depending on the violation’s circumstances. Some related offenses include domestic violence, criminal threats, elder abuse, stalking, vandalism, and contempt of court.
Appealing a Restraining Order
A permanent restraining order will affect your life in the short and long term. For example, it will remain on your record for five years from the date it expires. While a restraining order is not a criminal offense, it will paint an image of an abusive person, who employers will want to avoid.
Having a restraining order could also negatively affect your immigration status, especially if you are later convicted of a domestic violence offense.
In some cases, the protected person files a protection order maliciously to deprive you of custody of shared children, keep you out of the home, or gain some advantage. In this case, you are entitled to appeal the judge's decision to enforce a permanent restraining order against you.
The best chance to avoid a restraining order is at the temporary protection order hearing (especially if the protected person requests it unfairly).
The hearing's purpose is usually to determine whether the protected person requires further protection from the adverse party. Since the order will limit the adverse person's rights, such as those to custody and visitation, judges will require both parties' information to make a just ruling.
You can present your evidence at the hearing if you disagree with the temporary protection order extension. Note that you relinquish your right to present your side of the story by failing to appear in court.
You can appeal the judge’s decision at a higher court, where the appellate judge will review the decision made in a lower court to determine whether the judge made a mistake of law.
The appellate court is not a trial court. They will not admit new evidence or present fresh defenses. Instead, the court will review the evidence presented to the lower court, the proceedings, and the transcript from the lower court proceedings.
Appellate courts have strict deadlines if you want to appeal a restraining order. You must appeal the decision within 30 days of the judge’s decision.
Filling an appeal requires an attorney's help, especially if you are not familiar with the procedures and technicalities you have to follow to appeal.
You can appeal a restraining order on several grounds, including:
The judge abused his or her discretion.
The judge made a mistake of law, for instance, by applying a wrong rule or failing to follow the law that applies to the facts of your case.
The facts of the case and the evidence presented during the hearing do not support the judge’s decision.
Speak to an attorney even if you intend to file the appeal on your own. Ask questions such as the possible grounds for an appeal and the process of filing the appeal. Remember to include as many grounds as applicable in your case to broaden your chances of winning an appeal.
The appellate court could:
Vacate the permanent restraining order
Require a new hearing for the restraining order
Uphold the restraining order
As an alternative to an appeal, you can file a motion for reconsideration, which requests the same judge who issued the restraining order to reconsider his or her ruling. You can request a reconsideration if:
You believe that the judge did not consider or examine certain evidence properly.
You have new evidence which you were unable to present during the hearing.
The judge will consider the new evidence and decide based on the facts of the case and the legal provisions for such circumstances.
Throughout the appeal process, you should obey the dictates of the restraining order awaiting the appellate court's decision or the judge's.
Changing or Ending the Restraining Order
A permanent restraining order usually lasts five years. You can wait out the restraining period to end, or you could request a change or end to the restraining order before five years are up.
The law allows the protected person or the adverse person to request a change or modification of the restraining order. Some of the orders that can change or end in a permanent restraining order include:
Stay away and no-contact orders.
The persons protected by the restraining order
Child, custody, visitation, and child support orders
Spousal or partner support orders
You must file a request to remove each order if that is what you intend. However, you can file a request for the change or removal of one order if that is what you want.
For example, you can request the modification or end of stay-away or no-contact orders to see your children. Alternatively, you can request the end of a partner or spousal support if the protected person's income situation has changed significantly since the order.
Some of the forms you need to fill to request a change or end to a restraining order include:
Declaration Under the UCCJEA (FL-105)
Child custody and visitation application attachment (FL-311)
Request for Child Abduction Prevention Orders (FL-312)
FL-341 (C),(D), and (E) children’s holiday schedule attachment, additional provisions (physical custody attachments), and joint legal custody attachment
Income and Expense Declaration (FL-150)
Witness list (FL-321) if you intend to present witnesses in your case
Once you fill these forms, it is good to have a family law facilitator review them to ensure that you have filed the form properly before you file these papers with the court.
You should make several copies of all the forms you fill, present the original to the court, keep two copies for yourself, and the others for the protected person.
File your forms with the court clerk (including the copies). Filing the change or modification request is free unless the restraining order period has expired. You can ask for a fee waiver if you cannot afford the filing fee.
Once you file the papers with the court clerk, you have to serve the forms to the protected party by mailing these forms through a legal adult who is not part of the case. Ensure that the server presents these papers to the protected person within the required time.
He or she should also complete a proof of service and return it to you for filing with the court. The proof of service notifies the court that the other party has received the papers you filed with the court.
This proof is necessary since the court cannot make permanent orders or judgments before the responding party is properly served with the papers.
Once you file and serve the required papers, the court will schedule a hearing during which you can present evidence of the changes that have happened since the issuance of the permanent restraining order.
You can present supporting evidence and witnesses to help your case. After the hearing, the judge will decide whether to:
Change the restraining order (and issue a new restraining order that reflects the approved changes)
Ends the restraining order
Finally, the court will send the amended order to law enforcement bodies across the nation to ensure that their databases reflect these changes.
Find a Restraining Order Attorney Near Me
Restraining orders are supposed to protect domestic violence victims from continued abuse or potential harm by a perpetrator. However, in some cases, the alleged victim could request a restraining order against you unfairly, leading to loss of certain privileges such as loss of custody or visitation rights during the restraining order period.
Sometimes you could be charged with a restraining order violation even when you did not intentionally violate it. Having a lawyer during this time can help you explore the legal options you have.
Contact The Los Angeles Criminal Defense Attorney at 310-564-2605 for all your concerns and questions about permanent restraining orders.