BAY AREA DOMESTIC VIOLENCE LAWYERS – RESTRAINING ORDER LAWYERS
- Defend against Protective or Stay away order
- Temporary Restraining Orders
- Emergency Protective Orders
- Violations of Restraining and Protective Orders
RESTRAINING AND PROTECTIVE ORDERS
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.
What evidence will the Prosecutor use to try to prove a charge of violation of a restraining order against me?
In many domestic violence matters, the police or a judge will issue a restraining order against the alleged aggressor – we explain more about restraining orders in this section of our site. Having one of those orders made against you is not, by itself, a criminal charge – but if the order is violated then an offense may have been committed.
If the Prosecutor is alleging that you violated a restraining or protection order, pursuant to Penal Code 273.6, they must prove the following elements beyond reasonable doubt:
- that a court had lawfully issued a written order against you;
- that the court order was a protective/stay-away order, or some other kind of relevant order;
- that you knew of the court order;
- that you had the ability to follow the court order; and
- that you willfully/intentionally violated the court order.
Further, if the Prosecutor is alleging that you caused physical injury to the alleged victim, pursuant to Penal Code 273.6(b), they must prove a further element:
- that your conduct resulted in physical injury to another person.
Alternatively, the Prosecutor may allege that the order was violated by an act of violence, an offense under Penal Code 273.6(d). The additional element in those matters is:
- your conduct involved an act of violence, or a credible threat of violence.
- Court had lawfully issued a written order
This offense is based on the existence of some kind of restraining order, so the Prosecutor must prove that, at the time the alleged offense was committed, there was actually a lawful, written order in place.
Order was a protective/stay-away order
This offense only applies to certain kinds of orders – generally, those that relate to domestic violence incidents, or those that seek to protect people in a domestic relationship with the defendant. The Prosecutor must prove that the order that was in place was the type of order specifically related to this offense.
Knew of the court order
The Prosecutor must prove that you knew of the court order, and that you had the opportunity to read it and become familiar with it. So, for example, if the police applied for a temporary restraining order, but you had not been informed of the existence of the order yet, nor had an opportunity to read it, then there is no way that you could be found of guilty of breaching the order.
Had the ability to follow the court order
Besides proving your knowledge of the court order, the Prosecutor must also prove that you had the ability to follow it. This element is not often in issue in these kinds of matters – but it may arise where, for example, the defendant has some kind of mental impairment that means they can’t control their actions.
Willfully/intentionally violated the court order
To prove this charge, the Prosecutor must show that you violated the order on purpose. So, if an order states that you must not call or contact your boyfriend at all, you would be guilty of violating that order if you continually made calls and sent texts to his phone.
However, if your actions were accidental, you could not be found guilty of this offense. So, for example, you may be subject to an order that says that you have to stay a certain distance away from your ex-wife at all times. One day, you go to the local mall to buy some new shoes, and your ex-wife is there also – she sees you trying on shoes when she passes a store, and calls the police. In that situation, however, you would not be found guilty of violating the order. That is because you did not go to the mall to see your ex-wife, you did not know that she would be there, and you did not go near her on purpose.
Conduct resulted in physical injury
This element makes the offense of violating an order more serious. To prove this charge, the Prosecutor must prove that the conduct that constituted the violation of the order resulted in the alleged victim suffering some kind of physical injury. The injury does not have to be very serious, but there must be some kind of injury – such as bruising or broken skin.
It is very common for restraining orders to specify that the person must not ‘harass, attack, strike, threaten, or assault’ the protected person. In a case where this offense is charged, the Prosecutor may allege that the defendant breached the order by hitting the protected person. If that hit resulted in the protected person having a bleeding nose, for example, then it can be said that the conduct that violated the order also resulted in a physical injury.
Conduct involved act of violence, or credible threat of violence
Again, this is an element that serves to make the offense of violating a restraining order more serious. To prove this element, the Prosecutor must prove that the defendant acted violently, or that they threatened to.
An act of violence does not necessarily mean that any harm was done to the alleged victim – it could be an act of violence, for example, to throw a plate at the wall next to where the victim was standing. It could also be an act of violence if someone in the victim’s family was treated violently by the defendant.
A credible threat of violence is made when a defendant “willfully and maliciously communicates a threat to a victim of or a witness to the conduct that violated a court order. The threat must be to use force or violence against that person or that person’s family. The threat must be made with the intent and the apparent ability to carry out the threat in a way to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.” So, for example, imagine that a woman is subject to an order to stay away from her ex-girlfriend’s home. However, she goes over to her girlfriend’s home, and while standing at the front door, yells inside to her girlfriend, “If you don’t let me in I’m going to break this door down and strangle you!” Even if the person left shortly after that, and never carried out the threat, the threat itself would be enough to constitute a credible threat of violence.