Restraining Orders

Restraining or protective orders are court issued documents to protect an alleged victim from physical and sexual abuse, stalking, threats, or harassment. The alleged victim who applies for a restraining order is called a protected person, and the person the order is granted against is the restrained person. Many types of protective orders exist, including those taken by family members, colleagues, and civil restraining orders.

A restraining order can be obtained against you for various reasons. When you receive a restraining order, you must contact an experienced attorney to help fight against it. Restraining orders have various consequences to the restrained person if they disobey, including incarceration. At The Los Angeles Criminal Defense Attorney, we can help you challenge the restraining order against you and prevent a permanent one.

Understanding Restraining Orders

As earlier stated, many restraining orders exist, protecting the victims from domestic abuse, while others are work-related or civil. When a protective order is issued, the person mentioned as the restrained person must obey it, failure to which they find themselves facing criminal charges. If you receive a conviction for violating a restraining order, the consequences are devastating that include jail time and a criminal record.

The various types of restraining orders can be:

Personal Conduct Orders

Different restraining orders have varying content, all aimed at stopping certain behaviors or deeds against the alleged victims. If a protected person obtains a personal conduct order against you, it means you should not make any contact, text, or call them. Further, depending on why the protective order was obtained, it protects the alleged victim from your attack, battery, or hitting them. Personal conduct orders also protect the alleged victims from sexual assault, threats, stalking, or harassment by the restrained person. With this order, the protected person's peace and the property is also protected against destruction and chaos by the restrained person.

Stay Away Orders

When this type of order is obtained against you, it means you cannot come within a specified distance from the protected individual. For example, you can be asked to keep a distance of fifty or a hundred yards from the victim, home, workplace, car, or places they frequent. Further, the children of the victim are protected from you as well. The order can ask you not to go anywhere near the school or daycare facility where the victim's children are.

Move Out or Residence Exclusion Order

If you share a home or house with the protected person, they can take these kinds of orders to leave the shared residence where you both live. With this order, you will be asked to take your personal effects and move to a different place as you wait for the hearing and court's determination. These are, however, available in elder abuse or domestic violence situations.

Repercussions of Restraining Orders

When a person obtains restraining or protective orders against you, they can adversely affect your life. These consequences have made many violate the orders, landing them in more trouble. With an experienced attorney, you can fight against the issuance of a permanent protective order that makes the repercussions last for a long time. Some of these consequences include:

  • You receive restrictions against going to some places or doing some things that you may have enjoyed. For instance, if the wife obtains a restraining order against you following domestic violence allegations, you will not go to places you frequented together and enjoyed. If you were both members of a health or a members club, you would become restricted from visiting these places or meeting your friends.
  • You may find yourself looking for a new place to live when the orders are issued against you to move from your shared residence. This is inconveniencing and expensive, mainly because it is never budgeted.
  • If you share children with the protected person, the orders may require you to stay away from your children. If your partner or the protected person convinces the court that the children also need protection from you, it may mean you stop seeing the children as you used to.
  • A protective order will have you lose your right to firearms. This means that if you had a gun, you must surrender it to the authorities or sell it. Additionally, you cannot obtain a weapon while your restraining order is in effect.
  • If you are an immigrant, a restraining order can negatively affect your efforts to become a resident.

Restraining Orders in Domestic Violence

Domestic violence cases are many that involve people in an intimate relationship now or in the past, children, parents, or partners. If a person feels sexual, physically, or emotionally threatened by another in their home, they can ask the court to protect them from the violence by issuing a protective order.

Before one obtains a domestic violence protective order against you, they must convince the court that you are abusing them in any way. Domestic violence, based on the law, involves:

  • Harming or trying to hurt another person carelessly or by intentionally inflicting physical, emotional, or sexual abuse
  • Threatening a person with harm, especially if they refuse to do as you desire
  • Destroying property belonging to another like their phone, harassing, threatening, or stalking
  • Verbally or emotionally abusing the alleged victim, causing them psychological distress

Restraining domestic violence orders are issued to protect the alleged victim from violence or threats from the restrained person. If you have a close relationship with an individual, share a home, or are related by blood, they can obtain a protective order against you.

If a current or former spouse or partner feels threatened by you, they can petition the court to offer them protection. If you share a child with the protected person, the order can also bar you from seeing them or going near them. However, a parent can only obtain an order to protect their children below 12 years. When a minor is twelve years, the law recognizes that they understand abuse and petition for a protective order.

An important point to note is that a protective order isn't a divorce. This means, having a restraining order against you obtained by your current spouse does not mean the end of the marriage. If you or your partner wants a divorce, you must petition the family court to have it. Equally, being restrained from your children does not mean you seize from being their parent. A restraining order does not act as a determinant of parentage; it only protects those listed in it against your abuse.

It is critical also to understand that a restraining order will include the roles you must play in the relationship. For instance, you will have to pay child and spousal support where applicable.

Types of Domestic Violence Restraining Orders

In domestic violence, four kinds of protective orders exist. These orders are obtained under different circumstances and are effective over varied lengths. Protective orders found in domestic violence cases include:

Emergency Protective Orders (EPO)

These protective orders are only requested by the police to protect a person in a violent relationship. For instance, if the police are called to respond to domestic violence where the husband beats and severely injures their wife, they can request the judge to give it. These orders aim to protect the abused person from their abuser for seven days as they decide to ask for a restraining order themselves or bring charges against their abuser.

Typically, the judges are reachable to grant them any time of the day upon request. The officers are only required to show evidence that they responded to a violence issue at home, and there is a need to protect the alleged victim from their abuser. After seven days and the alleged victim has not petitioned the court for further order, the TPO seizes to be effective. However, in situations where the victim cannot petition the court due to the injuries sustained or are in hospital, the court can issue a more extended protective order.

Temporary Restraining Orders (TRO)

With this restraining order, the alleged victim must petition the court themselves or their lawyer to issue them with one. In this case, they must convince the court of the order's need before it is given. If the court becomes persuaded, there is a probable cause; the order is issued and served against the alleged perpetrator.

The validity period of these orders is also short. Because the court must be fair to both parties, the orders can only last 25 days. During this time, you are allowed to respond to the orders directly or through your lawyer. A court date is also issued where both parties will present their arguments for and against issuing the order. After hearing both sides, a decision is made to give or not to issue a permanent protective order against the alleged perpetrator.

Permanent Restraining Orders

Although the name suggests the orders are permanent, the period under which they are effective causes them to be called that. These orders become issued after a court hearing where a temporary protective order has been given. If the judge is convinced the alleged victim requires protection from you, a permanent restraining order is issued.

After the end of the five years, the protected individual can ask the court to extend the order for five years. However, you will still have an opportunity to fight against the extension, and with an experienced attorney, you can prevail against it.

Criminal Protective Order

When a domestic violence victim brings a lawsuit against their abuser, a criminal restraining order can be obtained as well. This is requested by the district attorney if the abuser threatens their witness who is the abused person. If you are accused of threatening the alleged victim to deter them from testifying or drop the charges, and you can carry out the threats, they can be protected from you.

Elder Abuse or Dependent Abuse Protective Orders

Elder or dependent abuse protective orders are issued to protect the elderly and those dependent on others from abuse. An older person must be 65 years or over to petition the court for a protective order. Dependent persons seeking protective orders must be aged 18 to 64 years, and have a disability either mentally or physically that prevents them from protecting themselves against abuse.

The persons who qualify to have these orders must be neglected or abandoned, physically or financially abused, or deprived of their caregivers' necessities. Additionally, if the person is receiving physical or mental treatment from you that they perceive to be hurtful, they can obtain a protective order against you.

Just like in domestic violence, persons in this category can have the following orders to protect them:

  • Emergency protective order – If a law enforcement officer receives complaints of abuse against the person and ascertains it to be present, they can obtain this order to protect the vulnerable victim from further misuse.
  • Temporary restraining order – An older person such as your parent or a dependent one can petition the court to protect them from physical, financial, or other abuse types from you. The order also lasts up to 25 days, but it can become lifted or extended to be permanent after the hearing.
  • Permanent restraining order – Again, as in domestic violence restraining orders, the judge can decide to issue a permanent restraining order against you to protect the elderly or dependent person after the hearing.
  • Criminal protective orders – This order is obtained when there is a criminal case against you, and the petitioner is an elder or dependent person. If the person is reasonably and validly afraid you may harm them, the district attorney can petition the court to issue a protective order against you.

How a Protective Order in Elder Abuse and Domestic Violence is Obtained

When a person feels they need to be protected from you because you physically, emotionally, or financially abuse them, they can ask the court to help them. A person seeking a restraining order goes to the court, obtains forms, and fills them. In these forms, the alleged victim will indicate the type of orders they seek and their reasons. The steps a victim would follow are:

  • The person seeking protection begins by going to the courthouse and filling in forms filed with the court. The filling of the documents is free.
  • Typically, a judge takes a day or two in the maximum to issue or deny the petition.
  • If the judge grants the petition, a temporary order is issued. This order restrains you from contacting the protected victim or any other person mentioned in it. Additionally, the person who can remain in the shared residence is indicated, and other conditions.
  • After the temporary restraining order is issued, the protected victim serves it upon the restrained person before the set hearing date.
  • After you receive the notice for temporary restraining orders, you can file your response before the hearing date or refrain from it. Responding to the restraining order is always advised to narrate your side of the story because it can persuade the judge against issuing a permanent order.
  • When the hearing date comes, it is essential to attend and offer your arguments. The law allows you to have a lawyer represent you or represent yourself. If you fail to honor the court date, the judge can issue a permanent protective order against you, on the strength of the alleged victim's testimony. If the person seeking the restraining order fails to attend court, the temporary protective order becomes lifted, and you are free to associate and move like before.
  • If the judge is convinced to issue a permanent order after the hearing, it can last for five years. However, with strong arguments from your attorney, the period of the order can be lessened. Upon the lapsing of the permanent order, if the protected person feels the need for further protection from you, they can petition the court to extend the order.

Civil Harassment Restraining Order

An unknown person can file a restraining order against you if they claim you threaten, harass or stalk them. This type of order is what is referred to as a civil harassment protective order. However, for a person to obtain this type of order against you, they must understand what constitutes civil harassment based on the law. The act is described as:

  • Illegally harassing a person through stalking, battery, or assault
  • Existence of reasonable threats to apply violence against them and
  • Threats against another person without cause to use violence or harm them

According to the law, reasonable or credible threats means you intentionally said things or did things in a manner that could cause a reasonable person to be scared. In this case, the alleged victim can accuse you of harassing them through calls, messages, emails, or stalking.

A person who seeks a civil harassment restraining order against you must not be a relative, but it can be a friend, neighbor, or other people. Family members not closely related to you can also obtain these orders against you if you feel threatened or harassed.

Workplace Restraining Orders

As the name suggests, these are orders to protect individuals at the place of work. These orders are only available to employers when they want to protect themselves from harassment at the workplace.

Sometimes, law enforcement officers or state employees can frustrate an employer or employee, and the employer can petition the court for protection. But, before an employer can obtain a restraining order against you, they must show the court the following:

  • The employee they need to be protected has been subjected to unlawful violence like assault or threats by you
  • The dangers of illegal acts happened at the place of work
  • The behavior you exhibited is unacceptable as a form of conflict resolution
  • You are involved in a constitutionally protected activity

The workplace order protects the persons named in it or their family against harassment from the restrained individual. The protected person is further prohibited from contacting the other employees, going near them, or their children. If the services you offer are constitutionally protected, you may be forced not to carry out your duties at the same workplace. If you are a firearm holder, you may be ordered to surrender it.

Like domestic violence or elder abuse protective orders, an employee can petition the court to obtain different restraining orders. These are:

  • Temporary restraining order – Unlike domestic violence and elder abuse protective orders, the orders are sought by a police officer; here, the employee petitions the court for these. The employee must convince the court why the orders are necessary before they are issued. TRO's in the workplace last from 15 days to 25.
  • Permanent restraining orders – With workplace restraining orders, the case is slightly different. An employer can petition for a permanent restraining order, even without a temporary one. If the employer convinces the court of the order's need, it is issued and lasts for three years. If the threat is still valid after the period expires, an employee can seek an order extension.
  • Criminal protective orders – When violence has been experienced or witnessed repeatedly, a lawsuit may be filed, and a criminal restraining order sought against the defendant.

The steps to obtaining a workplace protective order are similar to those of other restraining orders. The judge has the discretion of granting the orders or declining them, based on the evidence during the hearing.

Find a Criminal Defense Lawyer Near Me

Restraining orders can be devastating to the restrained person, mainly when they are based on falsehoods. Further, violating the orders set forth can cost you a lot, even your career. When issued with a notice for a temporary protective order, the best thing is to contact a lawyer who will develop strategies to fight the restraining order. If you receive charges for violating the order, an experienced lawyer from The Los Angeles Criminal Defense Attorney can help you fight the allegations for a favorable outcome. Call us at 310-564-2605 to discuss your case in detail.

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