Domestic violence temporary restraining orders are meant to prevent the reoccurrence of domestic violence acts and also to provide enough time for the involved parties to resolve whatever is causing the violence. For instance, you could be issued with this kind of order if the court believes that you are a danger to someone else and that person needs protection against you before the court hears your case. If you have been issued with a temporary restraining order, you should follow its terms and conditions to the latter, or you risk facing charges for violation of a restraining order.
Having a restraining order against you might throw you into confusion, driving you to not adhere to its requirements. You may convince yourself that the person who obtained the order wasn’t fair, leading you even to contact them and ask why they had to do it. This will only develop more problems. In this state of confusion, what you need to do is talk to a restraining order criminal attorney, to give you further advice. If you are in Van Nuys, you can reach out to the attorneys at the Leah Legal law firm. We understand that having a restraining order against you may be troubling, but we will provide legal guidance and attempt to obtain the best possible solution.
Overview of Restraining Orders
A restraining order is also known as a protective order. A person may file a domestic violence temporary restraining order against you if you have threatened to abuse or have abused them. This order will protect them by preventing you from carrying out your threats or committing further abuse. Usually, these kinds of restraining orders are filed by a person with whom you have a close relationship. They include your spouse, registered domestic partner, co-habitant, ex-co-habitant, ex-spouse, boyfriend/girlfriend, ex-boyfriend, or ex-girlfriend. Your child can also seek a restraining order against you on their own provided they are twelve years old or above. Someone else may also file a domestic violence temporary restraining order on your child’s behalf.
A person you’re related to within the second degree of consanguinity or affinity can also file a domestic violence restraining order against you. This includes your:
- Mother-in-law or mother
- Father-in-law or father
- Legally adopted child or stepchild
- Sister-in-law or sister
- Grandparent-in-law or grandparent
- Grandchild-in-law or grandchild
- Brother-in-law or brother
The in-law has to be through a current marriage. The person filing the restraining order may also request that the order protects other household or family members against you.
The Temporary Restraining Order (TRO) Process
For an individual to obtain a protective order against you, they have to present themselves in court and complete the necessary paperwork explaining to the court what transpired and why they need a protective order. After filling out the papers, the clerk of the court will give them a date when they will return to court for a hearing. If the victim is facing immediate threat and requires protection instantly, they can request for a TRO. The order will remain valid for between twenty and twenty-five days, or up to the time a court hearing will be conducted, which is usually in three weeks. The hearing determines whether or not a permanent restraining order should be issued.
Note that the person can request the court to issue a TRO against you without notifying you or without you being present. Most judges will issue the TRO if sufficient facts show the need for it.
The person seeking the TRO against you must have the TRO, and court papers served to you within five days of the scheduled hearing. The reason why you should be served with the papers is to let you know that someone has filed a petition against you. It’s after you have been personally served with the TRO that it will be in full effect. This means that there has to be evidence that you were personally served with the TRO.
Note that the TRO should not be served through any other means except in person. If it’s served through other means, the judge won’t issue a PRO. For instance, if you are served through the mail, that TRO will be considered invalid. And if you are taken to court for violating an order that wasn’t served properly, you can always argue that it was invalid. Usually, the protective order papers are served by a process server or police officer.
Generally, temporary protective order papers include the date & time the hearing will occur, an account of the requested action, and any other document the victim may have presented in court to support their petition. After being served, you will generally have between ten and twenty days prior to the date of the hearing to submit your response to the victim’s statements.
For you to be issued with a restraining order, you must have engaged in a given extent of threatening behavior that has affected the victim or by which there is reasonable cause to believe the victim might be affected. Domestic violence restraining orders are inclined to include indications of psychological, physical, or emotional abuse.
If the victim lives in California, but you reside in a different state, the court might not have personal jurisdiction over you since you are an out-of-California resident. This means the court might not be capable of granting a restraining order against you. There are various ways, however, that a court can have jurisdiction over you if you live outside California. They include:
- If you have a substantial connection to California. It could be that you regularly travel to California to visit the victim, to see your extended family, for business, or you resided in California and recently fled
- If the victim files their petition and you get served with the court petition while still in California, it’s another way a judge can have jurisdiction.
- One of the acts of abuse occurred in California. It could be that you made harassing phone calls or sent threatening messages from a different state, but the victim answered the calls or read the messages while in California. The court could rule that the abuse occurred to the victim while they were in their state of residence. It might also be possible that you were in California when you abused the victim but have since left for another state.
However, note that even if the above scenarios do not apply to the victim, it does not necessarily mean they cannot get a restraining order against you. If they file the order, they may be granted their request on consent or the court may be able to find other circumstances that permit the victim’s request to be granted.
Note that if the courts in California decline to grant the victim’s request, the victim can still file for the restraining order in the court in the state you reside in. However, they are unlikely to do so since they have to file the petition in person and appear in court a couple of times, which might be challenging if your state of residence is far away.
What a Domestic Violence Temporary Restraining Order May Require Of You
If the judge has issued a domestic violence temporary protective order against you, you may be required to do this:
- Not to threaten, follow, abuse, assault, sexually assault, harass, stalk the victim, or damage their property or disturb their peace
- Make contact, either indirectly or directly on the phone or through other means
Other requirements include:
- Granting the victim the exclusive possession, control, or care of any animals that you, the victim, or your child owns, and that you should keep your distance from and shouldn’t hurt the animal
- Vacating the home that you and the victim live in even if you’re the home’s owner or are the tenant
- Paying alimony (if you’re married) and child support
- Granting the victim temporary ownership or possession of items you own jointly, for instance, a computer, car, second home, etc. The court may also order you to pay the ongoing debts that are linked to those things
- Paying back the money the victim lost for not going to work or any other costs like shelter, medical, dental, legal, or counseling fees that stemmed from the abuse
- Paying the victim’s lawyer fees if the victim is incapable of paying them and you earn much more than the victim does
- Attending a batterer’s treatment program or any other counseling programs
- Transferring a shared mobile phone account to the victim’s name alone, so they keep their existing wireless phone number and the wireless numbers of any minor child in their care
- Giving the victim temporary child visitation & custody. The court may decide where the minors will live, how they will spend their time with either parent (including when, where, and whether or not that time is supervised), and who will make critical decisions that affect them. Note that any support, custody or visitation order that’s made within a domestic violence protective order will continue to be in effect even when the restraining order period ends.
- Attending anger management classes. You may also be required to attend parenting classes if minors were involved in the situation leading to the protective order. These classes may be required for as long as the court issuing the order thinks is appropriate for you.
- Granting anything else the victim asks for that the court agrees to.
The Punishment You Will Face If You Violate a Restraining Order
Mostly, violating a protective order is a misdemeanor offense in California. This crime is punished by up to $1000 in fines and a county jail sentence of up to a year. In other cases, however, the crime of violation of a protective order can also be a wobbler. It turns into a wobbler if it’s your second conviction for violating a restraining order, and your violation involved an act of violence. Wobblers are offenses that the prosecution can charge as a felony or misdemeanor. If you’re convicted of a felony, you will face up to $10000 in fines and a state prison sentence of up to three years.
Fortunately, if you are an immigrant, being convicted for violating a protective order won’t affect your immigration status. We have cases when being convicted of a criminal offense leads to an alien defendant to be inadmissible or be deported, for instance, when you get sentenced for an aggravated felony. However, violation of a restraining order isn’t an offense that would lead to inadmissibility or deportation.
Another good news is that you can always have your record of violation of a restraining order crime expunged. This is the case provided that you complete your probation sentence or jail term successfully, depending on which sentence was imposed on you.
How a Domestic Violence Restraining Order Will Affect Your Gun Rights
If you own a firearm, you will likely be required to sell it, store it with the police, or part with it for as long as the restraining order is in effect. Also, you are likely to be prohibited from purchasing other firearms for the period the protective order is still active.
And if you are found guilty of violating the terms of a restraining order, you may be denied the right to possess or own a gun completely. But this is the case if you are only found guilty of a felony violation of protective order. California law outlines that felons can’t possess or own a gun, meaning you will be stripped of your firearm rights.
What to Do If Served With a Protective Order
If you’ve been issued with a temporary protective order, it’s critical that you:
- Adhere to the TRO terms and conditions— read through the order carefully and ensure you comprehend all the conditions therein. Regardless of how unfair the order appears to be to you, complete adherence to it will reduce the likelihood of a more permanent protective order being served.
- Contact an experienced restraining order defense lawyer as soon as possible— your lawyer will assess the facts surrounding the protective order and advise whether or not you’re a danger to the victim. Additionally, the judge may see your hiring of a lawyer as a gesture of good faith. Also, if you believe the order is invalid, talk to your lawyer to give you further direction.
Fighting a Domestic Violence TRO
Respond to the Victim’s Statements—here you will have the chance to tell the judge your side of the story and also prove why you didn’t and don’t pose a threat of harassment or violence to the victim. Have your lawyer review your response before filing it to make sure your statements show you only have the victim’s best interest at heart.
Tell the court your version of the story during the compulsory hearing, in which the judge will examine the TRO papers and determine whether to grant the PRO or not. Stay calm and follow your lawyer’s instructions to the latter. Any emotional outburst may undermine your case.
In case the temporary restraining order turns to a permanent restraining order despite the efforts to challenge it, continue adhering to all the conditions provided in the PRO. Usually, a PRO is not indeed permanent. It may last from several weeks to a few years. Full adherence to the TRO provisions decreases the likelihood of renewal or enforcement of a PRO.
Legal Defenses to a Violation of Protective Order Charge
If you are accused of violating the terms & conditions of a protective order, you will be allowed to defend yourself. Successfully challenging accusations of a protective order violation in the state of California revolve around the facts surrounding the case. Below are the common legal defenses your lawyer can argue in court on your behalf:
You didn’t have the intention of violating the order — If your lawyer can prove that you violated the order accidentally, due to mental deficiency, or because of an understanding, the judge may dismiss the allegations against you.
The order wasn’t properly served — as we saw earlier in this article, there are strict rules regarding how a protective order should be served. In case your lawyer can demonstrate the required rules to serve the order were not met, you shouldn’t be convicted of the crime of violating it.
There is inadequate proof to prove you are guilty — the prosecutor has to establish, beyond any doubt that you violated the terms of the protective order for you to be convicted. If your lawyer can successfully cast reasonable doubt on your case by showing that the proof against you isn’t sufficient or reliable, then you shouldn’t be convicted.
Find a Restraining Order Criminal Attorney Near Me
A restraining order can restrict you from doing a lot of things, especially with the person you love. Before taking further action that you regret, you should talk to an excellent criminal attorney who understands restraining orders. At the Leah Legal, we have successfully helped clients throughout Van Nuys that have restraining order issues. We will review the facts surrounding the issuance of the order and help you figure out the next steps. Not only will we figure out what to do, but we will also defend you if you have been accused of violating a restraining order. Call us now at 818-484-1100 for a cost-free consultation for your case.