Domestic Violence Restraining Order

When violence erupts from someone who is close to you, you'll need help navigating the tragic circumstances that ensue. California state law makes the legal framework surrounding domestic violence restraining orders quite clear, but only a competent attorney can argue your case in a courtroom in such a way that ensures your continued safety. Before you file for a domestic violence restraining order in California, there are some things that you should know that will make this process easier when it comes time to legally compel someone you once shared your life with to keep their distance.

What Is a Domestic Violence Restraining Order?

While there are many types of restraining orders that you can request as a resident of California, domestic violence restraining orders for domestic violence are the only types of these court orders that are designed to protect you from people who you know on an intimate basis. If your spouse, boyfriend or girlfriend, domestic partner, or former spouse is threatening you, physically harming you, or otherwise making you fear for your safety, a California court may issue an order requiring that they keep their distance at all times.

Other types of restraining orders may be able to protect you from acquaintances, co-workers, or extended family members, but domestic violence restraining orders are the only types of court orders that can protect you from people who you've let into your deepest levels of trust. When you have to forcibly push someone away who you've grown to hold dear, you can experience an emotional toll that may harm your judgment, which is why it's so important to have competent legal help by your side when you embark on the process of requesting a domestic violence restraining order.

What Are the Conditions for Getting a Domestic Violence Restraining Order?

Before you ever bring your domestic violence restraining order request before a judge, you'll need to make sure that your case qualifies for this type of court order. Here are the specific conditions you'll need to meet for a judge to hear your case:

  1. The person against whom you're requesting a restraining order must have threatened to abuse you or abused you.

  2. You also must have a specific type of familiar relationship with this person. The types of close relationships that are considered include:

    • Spouse or domestic partner.

    • Former spouse (divorced).

    • Current or former boyfriend or girlfriend.

    • Current or former cohabitant.

    • Fellow parent of your child.

    • Close familial relationship such as parent, child, brother, sister, grandmother, or grandfather.

In some cases, you may be able to file a domestic violence restraining order on behalf of someone else. If you are the parent of a child who is experiencing abuse in your home, you can file a restraining order for them. Once your child is at least 12 years old, he or she has the option of filing a restraining order on their own, but you still have the option of filing an order on their behalf until they reach the age of 18.

If you don't qualify for a domestic violence restraining order, you may qualify for a different type of restraining order under California law. The best way to determine your options is to consult with an attorney who is well-versed on the subject of filing restraining orders in California.

What Types of Restraining Orders for Domestic Violence Are There?

Under California law, there are four domestic violence restraining order variations that a judge may issue. These restraining order types are:

  • Emergency Protective Order (EPO): If you're in need of immediate protection from someone close to you who intends to do you harm, you may be able to receive an EPO. This type of restraining order can only be requested by law enforcement, and they can be issued by judges at any time of the day or night. This type of restraining order gives law enforcement officers the power to act immediately on situations of domestic violence that they feel pose significant threats to your safety. Once they are issued, EPOs are effective immediately, and they may last up to seven days. If someone is served with an EPO, they may be required by a judge to leave your residence and avoid you and your children for up to one week. These types of restraining orders are generally issued to give you enough time to make it to court with your attorney to request a longer-lasting type of restraining order.

  • Temporary Restraining Order (TRO): Unlike EPOs, anyone can ask a judge for a TRO. These varieties of restraining orders last anywhere from 20 to 25 days, and they are granted by judges when it is determined that you require an extended period of protection from another person. The purpose of a TRO is to protect you up until the point that you can appear before the court for an official hearing.

  • Permanent Restraining Order: On your official hearing date, a judge will determine whether or not your case is befitting of a permanent restraining order. These types of California domestic violence restraining orders last up to five years, and when your permanent restraining order expires, you can request another one from the court. Permanent restraining orders are issued in the instance that it is determined that a person has a continued intent to harm you that is unlikely to be mitigated by the test of time.

  • Criminal Protective Order: Some instances of domestic abuse are so intense that they become criminal in nature. In these cases, the district attorney will file criminal charges against the abuser, which begins the process of bringing the person before a criminal court. While the criminal case is ongoing, it's common for the court to issue a criminal protective order against the abuser, and this court order remains in effect until the end of the criminal court proceedings. If the defendant is found guilty, their criminal protective order remains in effect for a further three years.

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What Does a Domestic Violence Restraining Order Do?

As you consider filing for a domestic violence restraining order against someone who was once close to you, it's common to wonder about the effects that these restraining orders may have against that person. Domestic violence restraining orders impel your abuser to follow a certain set of behaviors for a predetermined amount of time, and here are a few examples of the behavioral restraints that a court can impose on an abuser:

  • Forbid contact between the abuser and you, your offspring, your family, your pets, or people who share your home.

  • Forbid the presence of the abuser at your home, work, or the schools where your children are enrolled.

  • Forbid residence in your home even if you share joint ownership with the abuser

  • Forbid gun ownership for the abuser

  • Command payment of child support

  • Command observance of visitation and child custody court orders

  • Command payment of partner or spousal support

  • Command the transfer of a cell phone account from the abuser to the protected person

  • Command the payment of bills

  • Forbid the alteration of insurance policies

  • Forbid the accumulation of expenses or financial obligations that would significantly impact the property of the protected person if the abuser and the protected person are married or domestic partners

  • Command the return of certain property items

  • Complete a state-mandated one-year batterer rehabilitation program

As soon as a California court issues a restraining order against your abuser, information on the restraining order is logged in a statewide computer system that law enforcement officers have access to. Even if you move out of California, your restraining order will still be in effect, but make sure to coordinate with local law enforcement in your new area to ensure that they know about your restraining order.

What Doesn't a Domestic Violence Restraining Order Do?

It's common to have misconceptions about what a restraining order can do. A restraining order doesn't affect a complete severance between you and your abuser; it is not the same thing as a legal divorce, and you will remain your abuser's spouse even if you file a restraining order against them. The only way to become divorced from your abuser is to file for divorce through the court-recognized channels. A restraining order also doesn't change anything about the parentage rights of you or your abuser. If you aren't the spouse or domestic partner of your abuser, you'll be required to establish parentage status in a separate case before a California judge.

What Are the Consequences of a California Domestic Violence Restraining Order?

In California, a restraining order forbids contact between the person requesting the restraining order and the domestic violence offender in question. Different restraining orders will have different terms; while all domestic violence restraining orders forbid contact, they vary in terms of how far the offender must stay away from the person requesting the order.

One universal consequence of being served with a restraining order in California is the loss of gun rights. Citizens in the United States have the right to bear arms, but if a restraining order is successfully served on you, your right to defend yourself in this manner is stripped because the court has determined that you could abuse your rights to harm someone. Upon being served with a restraining order, you will be required to give up all of your firearms to law enforcement or immediately sell them to a licensed gun dealer.

What Constitutes a Restraining Order Violation in California?

Law enforcement officials in California take purposeful restraining order violations very seriously. If a restraining order is filed against you and you violate the terms of the order, significant criminal penalties can apply. Whether you're the person who filed the restraining order or the abuser, you'll need to understand which behaviors constitute violations of a restraining order and how to make sure that these violations don't occur.

For law enforcement to determine that a violation of the restraining order occurred, the following conditions must be met:

  • A judge issued the restraining order using the proper legal methods

  • The abuser had knowledge that the restraining order existed, and they comprehended the restraining order's terms

  • The abuser was deemed capable of adhering to the conditions of the order, and the judge wrote the restraining order in a reasonable way that avoided unreasonable or prejudicial restrictions on the abuser's behaviors

  • The abuser willfully and intentionally violated the requirements of the restraining order

A violation of a restraining order issued in California occurs whenever each of these conditions has been met, and the abuser violates any of the conditions of the restraining order. When it comes to violations, no one condition on a restraining order is more important than any other; violations are treated with the same seriousness whether they consist of unauthorized contact with a pet or with the protected person. If the abuser commits a restraining order violation, law enforcement will take a number of different factors into account including the abuser's criminal history and any other specifics of the case.

What Are the Penalties for Violating a Domestic Violence Restraining Order?

Depending on the unique circumstances of the case, a judge may assign widely varying penalties for violations of a domestic violence restraining order. If the abuser doesn't have much of a criminal history and this is their first violation, a capable attorney may be capable of avoiding jail time for their client and secure supervised probation instead. However, in most cases, jail time is mandated if the conditions of a restraining order are breached.

  • First violation: The first time than an abuser violates the conditions of their restraining order, the court may order that the abuser attends mandatory counseling, pay victim restitution, or make compulsory payments to a women's shelter. The first restraining order violation can be treated as either a felony or a misdemeanor, which means that abusers may spend over a year in jail for a single violation of their restraining order.

  • Second violation: Subsequent violations of an abuser's restraining order are treated much more seriously. Second violations can also be charged as misdemeanors, but a judge is much more likely to see a restraining order violation as a felony offense if an abuser has committed other violations in the past. If an abuser is convicted of felony violation of their restraining order, they could spend as many as three years in state prison.

How Do You Get a Domestic Violence Restraining Order in California?

The steps for getting a restraining order in California are relatively simple. As mentioned, law enforcement officers can issue emergency restraining orders, and you can also get a temporary restraining order as you wait for your case to be heard before a judge. To receive a temporary restraining order or a permanent restraining order, official court forms will need to be filed, and the workflow of filing for a restraining order in California generally follows these basic steps:

  • File a free domestic violence restraining order form in your local court.

  • A judge will decide if it's necessary to make a temporary restraining order within one business day.

  • When the temporary restraining order is made, a date will be set for a hearing in which your case for a permanent restraining order will be considered.

  • Before a judge will hear the case, someone over the age of 18 will need to serve the abuser with copies of all of the restraining order paperwork. This person must not be involved in the case, and there are professionals who serve these types of notices for a living.

  • After being served, the restrained person has the right to answer the restraining order with their own depiction of events.

  • On the appointed day, both you and the abuser must appear before the court. If you do not appear before the court, the judge will most likely decide to cancel the temporary restraining order. If you miss your court date, you will need to begin the process of filing for a restraining order again. If the restrained person doesn't show up, the hearing will proceed without their input.

  • The judge will decide whether to issue a permanent restraining order or cancel the temporary restraining order.

  • The judge will also decide whether or not it is appropriate to issue child custody or child support orders. These orders will have different end dates.