Courts have the power to issue restraining orders, also known as no-contact or protection orders, when an individual claims to be in immediate danger of harm. You should avoid taking a restraining order lightly, even if it is temporary. If you violate a restraining order, you could face arrest, a jail term, and criminal charges. When the court issues a restraining order against you, you could move out of your residence and avoid all contact with some people, including your children. You must follow the terms of an order even if you think the accusations are false or the order was issued against you unfairly. If you learn that there is a restraining order against you in Santa Ana, CA, the Darwish Law can help you understand the terms of the order. Our attorneys will also help you challenge the restraining order if necessary.
Types Of Restraining Orders
There are several restraining orders that the court could issue and implement in different ways. The types of restraining orders include:
Temporary Restraining order
The court will initially issue a temporary restraining order that lasts a few days. Usually, the court imposes a temporary order based on the accusations the victim presents without holding a hearing. The court also serves the abuser with notice and a chance to contest the allegations. A temporary restraining order takes 20-25 days and is intended to offer protection until the court can hear the victim's case.
Permanent Restraining Order
A permanent restraining order is not entirely permanent because it expires in three to five years. However, it is still a long time. In addition, considering the repercussions, the court would require proof that the abuser truly is a threat to the victim and requires legal restraint.
The hearing is usually an opportunity for the victim to call forth witnesses, like family members and close friends, who could be aware of the alleged abuse. A victim could create a paper trail of evidence if they confided in a therapist. The evidence shows a pattern of conduct by the abuser. The abuser's communication could be evidence in and of itself. Emails, threatening voice messages, and text messages could all qualify as evidence. If the victim has adequate evidence, he/she can secure a permanent restraining order against the abuser.
Emergency Protective Order (EPO)
An emergency restraining order lasts one week. This order usually applies in cases where the threat of violence is imminent and real. Emergency protective orders are common in domestic violence cases. The victim must call the police to obtain an emergency protective order since law enforcement officers are the ones to request the order. Therefore, victims must move quickly to secure an EPO, no matter the time.
When the court issues an emergency protective order, it starts working immediately. The abuser is ordered to leave and find optional lodging if the situation is one where you and the abuser live together.
Other Types Of Restraining Orders
Other common types of restraining orders under California law include the following:
- Elder abuse restraining order.
- Workplace violence restraining order.
- Civil harassment restraining order.
- Domestic violence restraining order.
Workplace Violence Restraining Order
The court could issue this type of order if a victim faces threats at the office or has an angry client with scary verbal abuse. If the person issuing threats goes ahead to find out where the victim lives, the victim has a reason to worry that the threat of violence is valid.
Victims can only obtain workplace restraining orders if their employers initiate them. The court does not allow employees to request this type of order alone. They must inform their employers about the alleged abuser. Victims must share their legitimate fears with the employer so that the employer can help.
Civil Harassment Restraining Order
Generally, this order is the same as a domestic violence restraining order. However, the only difference is the type of the relationship that exists between the abuser and the protected. This type of order is for relationships that aren’t close enough to qualify as domestic.
For example, a victim could have a dispute with their neighbor and try to resolve the issue, but their neighbor's response is to threaten them. The neighbor could act menacingly, shouting at them while going to work in the morning or doing other things, which escalates to a threat of violence. In this case, the victim could seek a restraining order against the agitated neighbor.
Additionally, a victim could apply for a restraining order if someone is stalking them. However, if the stalker is an ex-spouse, the order could fall under domestic violence. Civil harassment will apply to stalking done by an individual outside the domestic circle.
Elder Abuse Restraining Order
This order protects people aged 65 and above, given that society continues to record numerous elder abuse cases. The abuser, in this case, could be a person younger, provided they are over 18 years old. When the court issues elder abuse orders, it also presumes that the victim is disabled and he/she cannot protect themselves. This order does not only consider the physical aspect of the elderly because elder abuse is not limited to physical violence.
A caregiver who deprives the elderly of things necessary to live, like medicine and food, is an abuser. The act of denying a widower the right to put the photo of his deceased spouse on the window frame also qualifies as torment.
Domestic Violence Restraining Order
The court could issue a domestic violence restraining order after establishing that the victim has or used to have a close or intimate relationship with the abuser. According to the law, close relationships involve spouses and other close family members. The "close relationship" also includes former partners, including people in gay marriages.
You don't have to share a residence with the victim of abuse for it to qualify as domestic violence. In addition, domestic violence is not limited to a spouse. It could also be against your in-laws or other family members. For this order, the following qualifies as domestic violence:
- Direct physical violence.
- A credible threat of violence.
A former spouse who menacingly talks to the victim could be guilty. Depending on their conduct and the words they utter, a spouse could be subject to a domestic violence restraining order.
The victim must provide substantial evidence to obtain a restraining order. For example, if a victim has been physically abused, he/she needs medication to create a record of their injuries. Taking pictures of the damages can also serve as evidence. The victim can also seek the testimony of people who know that he/she was going through abuse. California usually waives the $395 fee for granting a domestic violence order.
What To Do When Someone Files A Restraining Order Against You
If you are served with a restraining order, you should avoid arguing or becoming aggressive with the law enforcers. Often, the law enforcers will issue you the order without knowing the accusations against you. If you confront the law enforcers, you could end up being arrested, worsening the situation. Violating a restraining order to make the victim withdraw the restraining order could also open witness tampering charges, especially if you already have criminal charges against you.
However, you must act fast if someone files a restraining order against you. The court will give you only a few days to file response papers and prepare for the hearing. You should do the following when someone files a restraining order against you:
Ensure You Understand The Restraining Order And Adhere To It
After receiving a restraining order, you should read and understand it to avoid violating it. If you violate a temporary order, it will be hard to contest a permanent order. You should read the entire order for the following reasons:
- Take note of your rights; for example, you have a right to have a lawyer present, to present evidence, and to receive notice of the hearing.
- Learn what the allegations are against you, including any evidence the alleged victim has.
- Find out when the court hearing is scheduled and when the response papers are due.
Having the right to legal representation does not mean the court will appoint an attorney on your behalf. Since restraining orders are civil matters, you do not qualify for a public defender or a court-appointed attorney.
Seek The Services Of A Restraining Order Attorney
You can represent yourself if you do not see the need to hire an attorney. Some people represent themselves in court to contest restraining orders. It is possible to fight a restraining order if you know how. You can successfully challenge your orders through trial or settlement without the help of an attorney.
You only need to learn how to carry out essential roles by yourself and understand when you require an attorney's assistance for some aspects of your case. Then, you can convince the court by organizing your evidence, preparing your presentation, and following a few courtroom guidelines.
However, it is advisable to seek the help of an attorney specializing in family law or restraining orders. An attorney is equipped with knowledge and experience regarding retraining orders. In addition, you need the representation of an attorney because restraining order cases can take a turn that you didn't expect.
Your attorney will help review your restraining order and examine all the accusations and evidence. The attorney will also create a defense and represent you in court.
Collect And Organize The Evidence Or Documents
You, or with the help of an attorney, should do the following:
- Make a list of possible witnesses, including every individual you think has information about the incident, allegations, or the said victim, and take the witnesses' contact information.
- Assemble any records or documents related to the case, including computer records, receipts, phone and GPS records, emails, letters, and records that could show where you were at the time of the incident.
- Gather any physical evidence relating to any incidents of abuse or events the victim refers to, like videos, photos, and clothing.
The victim must prove their allegations before the judge issues the permanent restraining order. The victim can typically do so based on a preponderance of the evidence. However, your evidence could be helpful in disproving or discrediting the victim's allegations. For example, you could claim that you were out of town or at a concert when the alleged incident happened.
If the petitioner accuses you of sending texts with threats or repeated phone calls with threats, your phone records could contradict the petitioner's allegations. Likewise, if the petitioner accuses you of driving by their house, your GPS records could help you disprove these accusations. This information is necessary to contest a restraining order.
Attend The Hearing
You must honor the court-set hearing, but if you fail to do so, the court will go ahead and issue a permanent restraining order against you. Generally, the restrictions and conditions in a permanent order exceed those of a temporary order. A permanent order could:
- Order the care and custody of family pets.
- Prohibit the respondent from possessing firearms.
- Give temporary possession of the home and vehicles to the petitioner.
- Order you to pay the petitioner's rent or mortgage payments, household bills, and child support.
- Determine temporary child visitation and custody rights.
Your only opportunity to tell your side of the story to the court is at the hearing. The court will allow you to table your evidence and ask the petitioner questions about the accusations. You should get to the court on time and follow the court's general rules. Some general rules include addressing the judge as "your honor" and avoiding speaking unless spoken to.
Avoid Talking To The Witnesses Or The Petitioner
Even seemingly, benign conversations between the witnesses or the petitioner could lead to allegations of witness tampering. In a restraining order lawsuit, it is a crime to interfere with a witness's evidence or cooperation. Tampering with or intimidating the witness involves attempting to get a witness to do the following:
- Cooperate with you.
- Refuse to testify.
- Destroy or alter the evidence.
- Say certain things under oath.
You could also face charges if you do the following:
- Prevent a witness from attending a legal proceeding, like a court deposition or hearing.
- Threaten the witness's family members or loved ones.
- Threaten a witness with physical violence or property damage.
- Offer a witness a bribe, including money, material goods, or some other benefits.
The law makes it a crime for any person to influence a witness intentionally by any means in a restraining order case.
Do Not Destroy The Evidence
Destroying the evidence in a restraining order case is a crime that involves tampering, altering, or concealing physical evidence with the intent to affect the results of the court proceeding or a criminal investigation. Destroying the evidence in a restraining order is illegal under state and federal law. The prosecutor can only convict you of damaging the evidence if he/she proves that you were aware that the item you destroyed could be the evidence in an ongoing or future proceeding. The prosecutor can also convict you of damaging the evidence if he/she proves that you intended to interfere with the investigation.
Enforcement Of Restraining Orders
The judge and the police enforce restraining orders since they are court orders. If an order is broken, the police could be contacted right away. The police will try to gather evidence of the violation via witness interviews and other sources like text messages, emails, and voicemails. Photographs or medical records could be used as evidence if the alleged victim was physically injured.
Consequences Of Violating A Restraining Order
In California, failing to obey the conditions of a restraining order could lead to a fine or jail time. A first offense can result in a year in jail and a $1,000 fine. If an injury occurs, the penalty is increased to $2,000 and a minimum of thirty days in jail. Subsequent offenses can result in six months to one year in jail and a $2,000 fine; a prison sentence is also an option.
In California, the penalties for violating a restraining order are severe. If you or a loved one has been accused or charged with violating a restraining order, speak with an experienced criminal defense lawyer about your situation and rights.
Frequently Asked Questions About Restraining Orders
People facing restraining orders often have many questions to ask. Some of the frequently asked questions include:
Can I Get the Restraining Order Dismissed?
Your best opportunity for having a restraining order dismissed is at the 15-day hearing. You should therefore avoid making the matters complex before that hearing. If the court makes the order permanent, the judge can revoke it, or the petitioner can have the order dismissed.
What Is The Difference Between A Restraining Order And An Injunction?
The terms restraining order and injunction are often interchangeably used in criminal law. Most injunctions are not related to criminal law. However, all restraining orders are a type of injunction, but not all injunctions are restraining orders.
Find A Criminal Defense Attorney Near Me
If you or somebody you know is faced with a restraining order in Santa Ana, CA, you need an experienced attorney to examine the circumstances of your case and develop a defense strategy to assist you in getting the best result possible. Darwish Law attorneys have in-depth knowledge of the local courts and the criminal justice system in California. Contact us at 714-887-4810 to talk to one of our attorneys.