Restraining Order

An alleged victim of abuse is considered a vulnerable population under California policy. As such, they are afforded special protections by both criminal and civil courts. These special protections are most frequently referred to as “restraining orders”.

California law defines a restraining order as a court-ordered directive that serves to protect someone from suffering physical, emotional, and/or sexual abuse as well as threats, stalking, and/or harassment. In other words, it is an order delivered by the judge that requires parties involved in either a civil or criminal matter to do or not do certain things. These instructions must be obeyed or the defendant can be charged with the specific crime of “violating a restraining or protective order” (California Penal Code 273.6 PC).

The state of California has four distinct types of civil restraining orders. They are as follows:

1. A civil harassment restraining order. This type of restraining order is the most common type. It may be requested by the alleged victim and is directed towards the defendant to stop any kind of violence (such as assault and/or battery), a realistic and imminent threat of violence, and repetitive behavior that causes reasonable fear and/or harassment in someone. The defendant and victim do not need to have or have had an intimate relationship in order to qualify for a civil harassment restraining order.
2. Domestic violence restraining order (DVRO). This type of restraining order can only be issued if the relationship between defendant and victim is an intimate qualifying relationship. This relationship is defined by the state of California as a married/divorced/separated couple, registered domestic partners, co-parents, cohabitants, or immediate family member.
3. Elder abuse restraining order. This form of restraining order is distinct from the other types because it explicitly deals with the protection of the elderly. California policy treats the population of elders, defined by state law as any person 65 years of age or older, as a vulnerable population. It is issued in cases where a defendant has been accused of elder abuse (violation of California Penal Code 368 PC). This includes physical, emotional, or sexual abuse as well as financial fraud and instances of criminal negligence.
4. Workplace violence restraining order. These restraining orders are brought before the judge by employers in the state of California on behalf of their victimized employees. In order to qualify for protection under the restraining order, they must have allegedly suffered abuse such as violence or the threat of violence, harassment, stalking, and/or repetitive behavior that would cause reasonable fear in most people.

The victim for whom the restraining order is issued is called the “protected person” while the defendant for whom the restraining order is issued against is called the “restrained person”. Depending on the specifics of the restraining order in question, it may also include other protected persons like the family or cohabitants of the victim. The judge may also make a fairly comprehensive set of instructions that must be followed by the defendant. Again, failure to do so will cause the district attorney (DA) to bring charges under California Penal Code 273.6 PC.

The presiding judge has a great deal of power in determining what types of behavior the defendant can or cannot do. Restraining orders are very disruptive to a defendant’s life. They can also separate a defendant from their family or children if the restraining order was issued family court due to a civil suit over child custody. Some of the provisions that a restraining order may have are the following:

1. No contact. This prohibits the defendant from contacting the alleged victim in any way, including via phone, email, and/or text as well as forbidding them to stalk, assault, observe, or disturb the alleged victim.

2. Peaceful contact. This provision allows for the defendant to interact with the alleged victim as long as said interaction is peaceful and civil. This provision is usually stated in the restraining order for very specific reasons, such as instances where there is joint custody of children and/or supervised visits with the defendant’s children.

3. To stay away. This directive requires the defendant to stay a minimum distance from the alleged victim as well as their residence, place of employment, school, and/or automobile. The minimum distance is determined by the judge based on the facts of the case and the defendant’s criminal history, but is usually three hundred (300) feet.

4. To move out. This requires the defendant to vacate a home or residence that they share with the alleged victim. This even occurs in cases where the house belongs to the defendant, such as in an acrimonious divorce.

5. To surrender guns. This provision forces the defendant to surrender their firearms and/or does not allow them to purchase any firearms.

6. To attend counseling. This orders the defendant to go to counseling sessions such as anger management.

Restraining orders may include these any and/or all provisions with the defendant’s own children, other family members, co-habitants, or intimate partner with the alleged victim. Even if the alleged abuse was directed towards the person who requested the restraining order, a judge may still require the defendant to stay away from all these various people. In some cases, the no-contact provisions are even applied towards pets as there have been cases of abusers hurting pets in order to exact revenge on their victim.

This depends entirely on the specific facts of the case and the type of restraining order. There are three basic timeframes for how long a restraining order can last. These timeframes apply to both civil and criminal restraining orders. The defendant does have an opportunity to contest the application of said restraining orders, though it can only happen at designated court hearings.

The quickest restraining order that can be issued is an Emergency Protective Order (EPO). This is a specific type of restraining order that law enforcement officials request from a judge. This usually happens when a police officer is called to the scene of a domestic violence incident. If they have probable cause to determine that the alleged victim is suffering physical harm and/or the threat of imminent future harm, then they request an EPO. The judges are available at any time, day and night, to issue these restraining orders. They are effective immediately upon approval from the judge and can last up to seven (7) days. They forbid the defendant from having any contact whatsoever with the alleged victim.

Once the EPO expires after a week, then the alleged victim can petition the court to issue a Temporary Restraining Order (TRO). The alleged victim must present information that they have a substantial reason to request a TRO, such as physical violence, reasonable fear that they are in imminent danger, and/or harassment. Harassment is legally defined as physical violence (or the threat thereof) and/or a repetitive (two or more instances) pattern of behavior with no legitimate purpose than to alarm or terrorize the alleged victim. TRO’s are usually granted for up to twenty-five (25) days.

Finally, the judge may issue a Permanent Restraining Order (PRO). After the TRO expires in 25 days, then there is a special court hearing held to determine if the TRO will become permanent. It is essentially a mini-trial (without a jury) as the judge will hear from both parties, as well as any witnesses for either party. This is the first opportunity that the defendant has to make their case against the restraining order. It is crucial to have good legal representation at these hearings as a skilled attorney can make the case that a PRO is unnecessary. PRO’s are not actually permanent; their length of time depends on what type of restraining order is being issued. A domestic violence restraining order is usually issued for five (5) years while a civil harassment restraining order is issued for three (3) years.

A criminal restraining order, also known as a Criminal Protective Order (CPO), is requested by the DA pursuant to California Penal Code Section 136.2. This section of the California penal code determines that these criminal restraining orders be issue by the judge due to a good-cause belief that the alleged victim is suffering from abuse, harassment, or the potential of either. Essentially, the courts issue these orders in a way that puts the defendant at a disadvantage when trying to make their case. It is crucial that the defense have strong legal representation in order to effectively fight the tactics of the prosecution.

The defense can successfully argue that the police officers never had probable cause to issue the Emergency Restraining Order in the first place. They can also argue that the judge did not legally issue a protective order. During the court hearing to determine whether a restraining order becomes permanent, both sides are afforded the opportunity to argue before a judge (but not a jury). At this point in time the defendant’s legal defense team can call into question the alleged victim’s testimony as well as whether they were justified in claiming that they felt reasonable fear for their safety or life.

The defense may also argue that because the restraining order was issued ex parte then the defendant did not know that the order even existed. Therefore, they would not be held criminally liable for violating a directive they were unaware of in the first place. Another defense is to argue that the order was not willfully or maliciously violated. It can be argued that it was carelessness or an honest mistake on the part of the defendant. Finally, the defense can also argue that the accusations are false and baseless.

The defendant is essentially at a disadvantage when it comes to fighting a restraining or protective order. For example, in the case of civil restraining orders, the defendant does not even get a chance to argue before the judge until they are afforded a court hearing right before the Temporary Restraining Order expires. This means that a defendant’s life can be entirely destroyed and upended based on false accusations made by an embittered spouse or ex-spouse.

Furthermore, both the alleged victim and the prosecution may petition the court to issue restraining orders, in the form of a civil and a criminal restraining order, respectively. This means that there are two entirely different sets of protocol (one for the criminal court and one for the civil court). It is important to have the best legal team available to navigate these complexities for you.