WHAT IS A RESTRAINING ORDER IN CALIFORNIA?
When a restraining order is issued, a judge sets conditions on a person's behavior. These conditions often restrict the interaction between the restrained person and one or more “protected parties,” which can include having no contact whatsoever. Some restraining orders prevent people from living in their own home, while still having to pay the bills. Some can give the “protected parties” special privileges, like sole control of disputed property or court permission to record people without their consent.
TYPES OF CALIFORNIA RESTRAINING ORDERS
California recognizes two types of restraining orders. The type of restraining order will depend on the relationship of the people involved.
Domestic Violence Protective Orders
A court will issue a domestic violence protective order if the people involve have, or had, a domestic relationship. This can include married and unmarried couples, cohabitants, people with children in common, or any people with a close intimate relationship. These orders are issued by a family court, even when there is no family relationship between the parties (e.g. dating).
Civil Harassment Protective Orders
A court will issue a civil harassment protective order when a dispute arises between people who are not in a romantic or family relationship. For example, a person could request a restraining order against their trespassing neighbor.
WHEN AND HOW ARE PROTECTIVE ORDERS ISSUED?
There are three types of protective orders issued in California. They are similar in some ways, but generally different based on duration and manner of issuance.
Emergency Protective Orders ("EPO")
An Emergency Protective Order is a short-term restriction on behavior, which can last up to seven days. An EPO is typically requested by police following allegations of domestic violence. An officer will relay the victim's complaints to a judge, who can issue the order on the spot. The officer will then informed the restrained party of the order, assuming the alleged offender is still present. These orders are meant to serve as a short-term bridge between a violent incident and the request for a longer fixed-term protective order.
Temporary Protective Orders ("TRO")
A Temporary Protective Order is a medium-term restriction on behavior which lasts between the request for a fixed-term protective order and the possible issuance of that fixed-term order. A protected party may request a temporary protective order be issued following the expiration of an emergency protective order, but an EPO is not required first. If someone goes to court seeking a permanent protective order, the court will generally set a hearing for a date in the future, and issue a TPO in the meantime.
Permanent Protective Orders ("PPO")
A permanent protective order is issued after the court conducts a hearing only. At the hearing, the alleged victim must provide evidence supporting their request to the judge. Each side has a chance to share their story, and then the judge can decide whether or not to issue a fixed-term protective order. A permanent protective order does not last forever, but it can last several years with the opportunity to renew.
FILING A RESTRAINING ORDER
If you need to file a restraining order, working with a local restraining order lawyer can assist you in completing the paperwork and represent you in court. Some courts offer legal assistance through a legal advocate, but you will not receive the same personalized attention as with a restraining order attorney dedicated solely to your interests.
DEFENDING AGAINST RESTRAINING ORDERS
The court will not provide you with legal assistance if you are defending yourself against the issuance of a restraining order. A private restraining order lawyer can help you prepare the best defense. All responses to a request for a restraining order are made under oath, which could then be used against you later in a criminal proceeding.
You are not required to have an attorney represent you at a hearing. Of course, you are not required to look both ways before crossing a busy street either. Your choice.
PROTECTIVE ORDER VIOLATIONS
Under California Penal Code 273.6, it is illegal to willfully violate a restraining order. A violation of PC 273.6 can be classified as a misdemeanor, punishable by up to 1 year in jail and fines up to $1,000. A judge could also elect to impose probationary conditions, like completing a domestic violence intervention course or pay restitution to the protected party, including bills and medical expenses. In other cases, a prosecutor may elect to charge PC 273.6 as a felony, depending on prior history between the parties and whether the most recent accusation was of a violent nature. Felony convictions for violating PC 273.6 can result in up to three years in state prison and payment of fines up to $10,000.
DEFENSES TO RESTRAINING ORDER VIOLATIONS
Consider the following scenario: Jordan and Armani are engaged to be married. Last month, after a terrible argument about infidelity, Armani went to court and got a temporary no-contact restraining order against Jordan. Now, Armani wants to reconcile and tells Jordan to come home so they can discuss attending couples counselling. When Jordan pulls up and goes inside, a neighbor recognizes his car and calls 911. Police arrive to find Jordan and Armani, talking civilly at the kitchen table, and arrest Jordan for violating the stay-away portion of the restraining order.
- Is it a defense that Armani invited Jordan over to talk? NO!
- Is it a defense that Armani did not call 911, and does not want Jordan arrested? NO!
- Is it a defense that both just want to put this behind them and move on with their lives? NO!
Based on his extensive experience with domestic violence prosecution, Attorney Peter James Chambers knows how illogical domestic violence law and enforcement can seem. When a judge issues a restraining order on behalf of someone, the protected party's interests cease to matter. Only a judge can impose the restraining order, and only the judge can remove it. These processes rarely move quickly and frequently fail to respond to the occasionally volatile nature of human decision making. However, Mr. Chambers can work smartly and efficiently to prevent his clients from being wrongfully convicted.
A person must be made aware that a restraining order exists and the terms of that order before that person can be convicted of violating the order. To put it another way, you cannot break the rules if no one tells you the rules beforehand. To prove you violated a protective order, a prosecutor will have to show that you were on notice of the terms of the order. You cannot be found guilty of contempt, for example, if the order was never properly served, or service was incomplete or the paperwork contradicted the actual order.
A person cannot unintentionally violate a restraining order. Suppose the restrained party is entering a grocery store while the protected party is leaving the same store. This chance encounter is not deliberate, and therefore cannot be illegal.
Unfortunately, this is probably one of the least prosecuted crimes in the country, and it happens more than our society would like to admit. In some cases, false accusations are believed because law enforcement fails to investigate. The recent trend to validate the stories of true victims has produced a reflexive instinct to believe any accusation, however implausible. Mr. Chambers has torpedoed several false allegation cases merely by investigating and showing the DA that their “victim” is untrustworthy. Mr. Chambers can also work to uncover the underlying motives behind the false accusations, like revenge or a desire gain an advantage in family court, and lay those bad intentions bare for the court to see.
Why Hire a Restraining Order Attorney?
If you've been set up and you don't have a dedicated advocate on your side, you're still set up. While you wait, the government is building its case against you. Contact the Law Office of Peter James Chambers immediately for a free case evaluation.