There are two main types of restraining orders in California, which are the permanent and temporary restraining orders. Permanent restraining orders seek to protect victims of certain crimes such as sexual assault, stalking, child abuse, harassment, domestic abuse, and other related offenses. According to California PC 273.6, it is a criminal offense to violate a restraining order's conditions. If you are charged for violating the terms of a restraining order in Van Nuys, Leah Legal can assist you in fighting the charges.
The Meaning of a Permanent Restraining Order
Issuing a permanent restraining order against you may affect your life in many ways. You may no longer have the right to tour the place you enjoy. You may not be able to visit your family, as well. This order may also come with conditions that affect how you interact with other people.
In some instances, the court may recommend supervised visitations with your children. The recommendation may cost you money because every time you intend to visit your children, you would have to hire a person to supervise the visitation. The court may prohibit you from interacting with your children if you cannot afford a paid visitation. For others and this reason, you must contact a competent attorney after receiving a notice for a protective order.
How long a restraining order lasts may vary depending on the circumstances of the case. A permanent restraining order may last for many weeks to several years or even for the rest of your life. To have a permanent restraining order granted, the petitioner should have conclusive evidence of physical harm, harassment, or threats. Upon issuing a permanent restraining order, it would be against the law for the abuser to contact the petitioner.
Restraining orders may include stay-away orders, move away orders, or personal conduct orders. A personal conduct order prohibits the restrained person from engaging in specific actions. The actions include communicating with the victim, attacking, and stalking. Violation of the conditions of a restraining order may form a basis for arresting the restrained person. The order also prevents all forms of contacting the protected person either in person or using social media or phone.
The restrained person may have to keep a certain distance from the protected person if a stay-away order is a condition of the restraining order. For instance, the court may advise the restrained person to maintain at least 100 yards away from the protected person.
A restrained person would be required to move away from the protected person if a move away order is a condition of the restraining order. This will help prevent the protected person from bumping into the restrained person by mistake.
The abuser might have to stay miles away from the petitioner. If you violate the terms of the permanent restraining order, and the victim notifies the court, the judge might impose tougher measures. However, a victim must have ample evidence to indicate that you violated the restraining order. The evidence may be in the form of text messages, photographs, emails, or other documents. If the restrained person resides in the same place as the victim, they may have to relocate after the issuance of a permanent restraining order.
Conditions for Getting a Permanent Restraining Order
In California, a victim has to prove that the alleged abuser has committed certain acts against him or her. It should be evident that the victim had a certain relationship with the abuser before the petition for a permanent restraining order was considered. For a California court to consider a restraining order case, it needs to meet the following conditions:
- It should be evident that the abuser had abused or threatened to abuse the victim.
- The victim and the abuser must be in a close relationship, such as former or current cohabitant, current or former girlfriend or boyfriend, spouse or partner, a person whom the victim has had a child with, close relative, or a divorced partner.
- If the abuser qualifies to all these conditions, a victim may file for a permanent restraining order. If a victim does not qualify to file a permanent restraining order against the abuser, he or she may file for another type of restraining order as outlined under California law.
The Process of Getting a Permanent Restraining Order
The victim might have to visit the court to get a permanent protective order against an abuser or prospective abuser. Once the court accepts the filing, the victim gets a notice regarding when the case will commence. The victim has to attend the case proceedings on the said date, day, and time to avoid dismissing the case.
The alleged abuser also receives notice of the restraining order requiring him or her to appear at the restraining order hearing. If an abuser fails to show up for the hearing, the turn of events may favor the victim. Without the opposition from the alleged abuser, the victim can monopolize the hearing. It is easy for the victim to convince the judge to issue a permanent restraining order against you if you are not present to give your side of the story.
A permanent restraining order hearing is necessary either to make a restraining order permanent or to lengthen a temporary restraining order. The court may first issue a temporary restraining order if a victim applies for a restraining order against an abuser. The abuser, who is the perpetrator, may have a chance to argue against or oppose the order during the hearing.
It is important to contact a criminal lawyer before the final hearing of the restraining order. Your lawyer may help you through the hearing and use his or her expertise to argue against the restraining order conditions. You should immediately contact a lawyer once you notice that someone has filed a restraining order against you.
If you do not attend the restraining order hearing, you will not have an opportunity to exercise this right. If the court validates the victim's petition, it may issue a permanent restraining order against you immediately.
Effects of Permanent Restraining Order
Permanent restraining orders and temporary restraining orders have equal effects on an abuser; they only differ based on their effective periods. Barring physical contact is not enough to ensure that an abuser does not affect the victim's life further. A permanent restraining order also gives an abuser extra conditions as follows:
- The restrained person to fulfill any spousal court orders, partner, or child support
- The restrained person to take back certain personal property items following the restraining order
- The restrained person has to get a new residence if he or she resides in the victim's home
- The restrained person should not make any investment or spending decisions to harm the victim's shared financial situation.
- The restrained person should not make any changes to shared insurance plans
- The restrained person transfers the ownership of any cell phone plans that the victim uses to the victim's name
- The restrained person stays away from the victim's place of work, children's schools, and the victim's residence
Restrictions from Owning a Gun
You may be forced to immediately relinquish any gun that you may have to either a state-recognized gun dealer or law enforcers after issuing a permanent restraining order against you. According to California's law, certain people have a legal right to own firearms. However, for people who are regarded as dangerous to society, this right does not apply.
Consequences of Violating the Permanent Restraining Order
You will be guilty of violating a permanent restraining order if you fail to abide by the conditions of a restraining order. For the violation to be valid, the prosecutor must prove that you were aware of the order and had full knowledge about the order conditions.
The actions that may have been regarded as a violation of the order may not be charged if the judge who gave the restraining order made relevant mistakes during the filing process. The prosecutor may charge you with a violation under PC 273.6 alongside any other additional crime you commit.
It is against the law in California for a restrained individual to violate what the orders dictate. The violation is punishable, depending on several factors. The judge may be more lenient in the case of a first violation. For a violation of a permanent restraining order, the court may rule the crime as either a misdemeanor or a felony. In most cases, the first violation of a permanent restraining order is a misdemeanor punishable by jail time of not more than one year. The court may also require you to pay a fine not exceeding $1,000. In some instances, you might get a penalty of both jail time and fine.
You may face more severe penalties if the prosecutor assigns felony charges to the crime of violating a permanent restraining order. The penalties may include a three-year jail term in state prison and a fine not exceeding $ 10,000. However, a permanent restraining order does not affect your immigration status. Crimes of moral turpitude may render a person inadmissible into the United States or lead to deportation. The violation will not lead to deportation if you merely violate a permanent restraining order without committing an aggravated felony.
Lifting a Permanent Restraining Order
At times, a permanent restraining order can be lifted under California law. A restrained person may be required to follow a particular process that does not violate this order before the request is granted. A permanent restraining order must be lifted through a court process because it was put in place by the court. This order may not be enforced forever; it may only be enforced for some specific period. Once the period elapses, the order may expire if a victim does not ask for extension or renewal. A restrained person subjected to this order may file a motion to have a restraining order terminated. The motion must include information such as:
- Any reasons for removing or lifting the restraining order
- The date the court affected the restraining order
The names of the parties involved
The reasons for having the order lifted should show that the parties involved want to have contact with one another. It should also indicate that the person who filed a motion agrees to have the order lifted, and he or she is not being forced to request lifting. After a hearing, the judge may look into available evidence and then decide whether to deny or accept to lift the order.
Types of Permanent Restraining Orders
There are several types of permanent restraining orders. The type of permanent order depends on the victim involved and the form of harassment made by the abuser. The court may issue a restraining order for:
Elder Abuse
For an elder abuse restraining order to take effect, physical abuse does not need to have occurred. An elder abuse permanent order is different from other forms of restraining orders because it aims at preventing elder abuse. Financial abuse can trigger a restraining order to protect an elder. Financial abuse is the poor spending of an elderly person's finances, usually by a caregiver or a close relative. The ways of committing financial abuse against an elder include faking the elder's signature on bank documents and stealing the elder's money or properties. Elder abuse may also comprise of neglecting or abandoning an elder.
Civil Harassment
The court may issue this order if you engage in any type of violence against a victim. The order may also apply in case of a valid threat of violence. This is the most common form of a restraining order. The court may issue this harassment under certain circumstances. If you show a pattern of behavior that scares, harasses, or annoys a person, the court may impose this form of a restraining order.
Workplace Violence
This order may apply if an employee has been experiencing a pattern of conduct or occurrences, which would make a normal person fear his well-being or safety. California employers may request a workplace violence restraining order on behalf of their employees. It should be evident that the employee is suffering in the workplace because of a credible threat of violence, physical abuse, stalking, or serious harassment. The employee may apply for a regular civil harassment restraining order if he or she does not qualify for a workplace restraining order.
Domestic Violence
You may have a qualifying domestic relationship with the victim if you are registered domestic partners, closely related, married, divorced, living together, or separated. A person closely related to you includes your child, brother, grandparent, sister, or parent. There should be a qualifying domestic relationship between the perpetrator and the victim for a domestic violence permanent restraining order to apply. Valid evidence of emotional abuse, the threat of abuse, or physical abuse should exist. A qualifying relationship refers to a personal relationship between a perpetrator and the victim, outlined by the domestic violence statute in California.
Defenses to Violation of a Permanent Restraining Order Charges
Some of the defenses you and your attorney can apply if the prosecutor accuses you of violating a permanent restraining order include:
You did not Act Intentionally
For you to be guilty of violating a permanent restraining order, you should prove that you acted on purpose. Your attorney can defend you by stating that even if you violated the restraining order's conditions, you did not do it on purpose. You can't be liable if it is evident that you did not act willfully; you may have committed the violation accidentally.
The Order was not Lawful
There must have been a valid basis for the judge to issue a restraining order against you. You can only be guilty of a permanent restraining order violation if the order had been lawfully issued. It should have been evident that you were threatening, risking the well being of the victim, or harassing the victim. If a legal basis for issuing the order did not exist, there would be no basis for your conviction. It should be apparent that the court gave you a chance to give your side of events against the permanent restraining order during the hearing.
Offense Related to Violation of a Permanent Restraining Order
The prosecutor may charge you with the related crimes alongside the offense of violation of a restraining order. The related crimes include:
Criminal Threats
California PC 422 describes the crime of criminal threats. Your threat must be specific and explicit for you to face criminal threat charges. You may be guilty of this crime if you threaten to kill or harm another person physically. Your threat should make the target or the victim experience intense fear.
Other crimes related to the offense of violation of a restraining order include vandalism, contempt of court, and stalking.
Find a Domestic Violence Attorney Near Me
Have you just received a notice of a permanent restraining order against you? You may not have to accept all the conditions of the order if you hire a lawyer. You should contact an experienced domestic violence attorney immediately. For the legal representation in Van Nuys, contact Leah Legal at 818-484-1100 and speak to one of our attorneys.