DOMESTIC VIOLENCE – RESTRAINING AND PROTECTIVE ORDERS?
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The rationale behind restraining and protective orders is to protect people who have been abused, or threatened with abuse. Restraining orders are not, by themselves, a criminal charge or penalty, and having a restraining order made against you does not result in a criminal conviction. However, it is an offense under Penal Code 273.6 to violate the terms of a restraining order. In cases where the DA has filed criminal charges, they will often seek a criminal protective order, sometimes known as a ‘stay-away’ order.
Unfortunately, restraining or protective orders can sometimes be imposed regardless of whether the alleged victim requests one or not. Criminal judges will often make an order with little regard for whether the victim feels it is needed – but Summit Defense will work to avoid the imposition of restraining orders wherever possible.
What are restraining and protective orders?
There are several different kinds of restraining and protective orders that a court can make, but in domestic violence cases ‘domestic violence restraining orders’ are most commonly used. These orders can be made pursuant to Division 10 of the California Family Code – otherwise known as the Domestic Violence Protection Act.
This law aims “to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” It gives the courts the power to issue orders to protect people who allege that they have been subject to a recent incident of violence, or a threat of violence, from someone that they are in a domestic relationship with. There are three types of domestic violence restraining orders.
Emergency Restraining Orders
These are orders that the police can obtain at short notice, by calling a judge. The judge authorizes the order over the phone, and they can be made 24 hours a day.
Emergency restraining orders begin immediately, and they can last for up to seven days. These orders can include provisions that the alleged abusive person leave the home, or stay away from the alleged victim and any children. The aim of an emergency restraining order is to give the alleged victim time to go to court and properly file for a temporary restraining order, or to give the police time to investigate a matter before a criminal protective order is made.
Temporary Restraining Orders
These are orders that are in place between the time that someone applies for a restraining order, but before a full hearing is held. So, when someone goes to court to request that a restraining order be made, if the judge believes that temporary protection is warranted, they will make a temporary order.
Temporary restraining orders usually last between 20 and 25 days – that is, until the final court hearing date for the permanent order. In criminal cases, temporary orders can also be made until there is a final determination of the charges against the defendant.
Permanent’ Restraining Orders
These orders are made once there has been a court hearing. If the person requesting the order satisfies the judge that hears the case that protection is needed, the judge can make a permanent order that lasts up to three years. At the end of that time, the order will lapse – unless the person seeking protection applies for it to be extended, and goes through another hearing to determine if an order is still warranted.
Criminal Protective Orders
In cases where criminal domestic violence charges have been filed against a defendant, the Prosecutor will usually also request a criminal protective order, sometimes also known as a ‘stay away’ order. Even if the DA does not make such a request, judges can decide to issue an order on their own volition.
Criminal protective orders operate in virtually the same way as restraining orders, and run alongside a criminal case. They usually remain temporary while the case is progressing, and can be made ‘permanent’ if the defendant is found guilty.
What is a domestic violence civil restraining order?
Even if there is no criminal case pending, a person can still apply for a civil restraining order against someone they are in a domestic relationship with. These orders are made by the Family Court, and are often seen in the context of divorce cases. They can cover situations where the person is alleging violence and threats, or where they allege harassment. Again, these orders do not represent a criminal conviction – but violating an existing order is an offense.
Who is covered by domestic violence restraining or protective orders?
Domestic violence restraining orders, and criminal protective orders, apply to people who are in close domestic or family relationships. In California, these orders can be made in relation to people who are:
- married or registered domestic partners;
- divorced or separated;
- dating or used to date;
- lived together, or used to live together – that is, ‘cohabitants’;
- parents together of a child;
- otherwise closely related – for example, siblings, grandparents, in-laws.
Parents can also apply for orders on behalf of their children, and children over twelve years of age can apply for their own orders.
What are the consequences of having an order made against me?
Restraining and protective orders are court orders and, as such, must be taken seriously – criminal charges will be filed against a person who violates an order.
By making an order, the court can order you to:
- not contact or go near you spouse, your children, other relatives, or other people who live with you;
- move out of your house;
- give up your gun;
- follow child custody and visitation orders;
- pay child support;
- pay spousal or partner support ;
- stay away from your pets’
- pay certain bills; and
- release or return certain property, usually to the protected person.
How can Summit Defense Attorneys help me with restraining orders?
In cases where the parties want to remain in contact with one another, we are usually able to persuade the judge to grant what is known as a ‘peaceful contact order’. This restrains the person from being violent or threatening the protected person, but it can still allow the person to live in the home and keeps the family together.
We understand that the usual restraining and protective orders can make day-to-day life very difficult, and can cause families great pain – that’s why we will always work to make sure that any orders made in your case are ones that you can live with. We will also aggressively defend any criminal charges against you, so as you are not subject to the additional ‘penalty’ of having a permanent order made against you that is available as a matter of public record.
Will a restraining order affect my immigration status?
Yes, a restraining order can affect your immigration status. If someone has applied for a restraining order against you, or you are already subject to an order, you should contact Summit Defense Attorneys and speak to our specialist immigration attorney immediately. Even though a restraining order is not a criminal charge, an order can still affect your immigration status if you are on a visa, trying to get legal papers, or applying for a green card. We will develop a strategy that protects your immigration status, and aggressively defend any criminal charges against you.
Will a restraining order still be made, even if we’ve reconciled and my partner doesn’t want one?
Yes, a restraining order can still be made, despite what the alleged victim wants, and regardless of whether the parties have sorted out their differences. The DA can apply for an order if there are criminal charges pending, and a judge can make an order of their own volition.
If you have reconciled with your partner, or if the alleged victim does not want an order made, your best chance of avoiding the imposition of an order – or of having a less restrictive order made – is to have an attorney from Summit Defense in court for you. When the judge is considering whether to make an order or not, and what the terms of the order should be, we can make sure that they hear all of the facts from your side, and present your relationship in the best light. We are often successful in having ‘peaceful contact’ orders granted, even in cases where criminal charges are pending. This gives our clients the best chance of being able to get on with their day-to-day lives, and to maintain their family relationships.
Can I get an order lifted, or can the victim ask for it to be dropped?
When an order is made in the context of criminal proceedings, the only person who can decide what happens to the order is the judge. If the order is not final, however, there are steps your attorney can take to make a difference.
Every case is different, but if you or your partner is unhappy with the order, or the terms of the order, you should contact a Summit Defense Attorneys to discuss how we can assist in your case.
What happens if I contact the victim when there is an order in place?
If the order made against you prohibits you from contacting or communicating with the protected person, then you must obey that order. If you violate the restraining order, and the police are informed, then they will charge you with an offense.
We outline the elements of the offense of violating a restraining order in more detail, above. If you do need to contact your partner, or if you and your partner think that the order in place is too restrictive, you should contact an attorney for assistance – we can speak to your partner on your behalf, and depending on whether the order is temporary or not, we may be able to ask the judge to impose a peaceful contact order so you and your partner can still speak to and see each other.