California Domestic Violence Restraining Order
If you’re accused of harassment or abuse by a partner or spouse, family member, or anyone you share residence with, a domestic violence restraining order may be issued against you. The order protects the other party from physical harassment, abuse, and verbal threats. Grounds that warrant the issuance of a restraining order include physical and sexual assault, throwing things, stalking, destroying/stealing property, and intimidation.
Getting Help With Restraining Orders
Since the Covid pandemic, the number of people seeking retraining orders has increased significantly. Additionally, California has some of the most complex and frustrating domestic violence procedures. Hence, nothing is as harrowing as being accused of domestic violence by a spouse or family member and having a restraining order issued against you in the state.
An arrest for domestic assault, battery, or criminal threats can result in jail time, fines, and other penalties. You even face the prospect of having a criminal record. For this reason, it’s best to have experienced criminal defense attorneys by your side. They not only represent you but also guide you through the complex and confusing court process.
The attorneys at Seyb Law Group are among the top criminal defense lawyers in California. We’re here to help you navigate this trying moment of your life and fight the restraining order against you. So, don’t suffer alone when you have a team you can count on for help. Contact us today to schedule a free and confidential consultation with our attorneys.
Legal Definition of Domestic Violence in California
Before you respond to a restraining order, it’s best to understand the definition of domestic violence. According to the California Domestic Abuse Laws, domestic violence refers to a situation when you do either of the following to a former or current spouse, girlfriend, boyfriend, or someone you’ve sired children with, lived with, or are related to by marriage or blood:
- Attempt to cause or causes physical harm to them
- Sexually assault them
- Attack, batter, or strike them
- Make them fear that another person faces immediate danger
- Stalk them
- Harass or threaten them either in person or through emails, phone calls, and other avenues
- Destroy their property
- Have and use coercive control behavior to interfere with their liberty and free will
- Disturb their peace (ruins your emotional and mental well-being)
However, these are not the only grounds for domestic violence. So, if the acts you allegedly perpetrated don’t fit within these parameters or you don’t have a specific relationship with your accuser, a Civil Harassment Restraining Order can be issued against you.
Also, dependent or elderly adults qualify for a protective order if they get neglected, physically abused, or financially abused by anyone. Likewise, if they feel deprived of the necessary care by you as their custodian, they can file a restraining order against you.
Domestic Violence Restraining Order Types
In California, there are three types of domestic violence restraining orders:
Temporary Restraining Orders
When a restraining application gets filed, the court clerk will assign the parties a date, typically within three weeks, when you must return for a court hearing. However, your accuser can apply for a temporary restraining order if they’re facing imminent danger and need immediate protection. With a temporary restraining order, they can order you to leave home immediately and not contact them in any way.
The order also provides other forms of protection. For instance, you will be ordered not to follow the applicant or your kids and family members. The applicant may even be granted temporary possession of jointly-owned assets such as the family car. The court can also order you to pay the other party’s legal fees if they can’t pay up and you earn more money than them.
Emergency Protective Order
If law enforcement officers respond to a domestic violence call by your spouse, they can call a judge and request for an emergency protective order to be issued immediately. Judges only issue emergency protective orders if they believe your accuser faces imminent danger or a child is in present or immediate danger of abuse or kidnapping (abduction) by a parent or relative.
In this case, the emergency protective order will go into effect immediately to prevent domestic violence and child abuse/abduction. In California, emergency protective orders last for either five or seven calendar days. Thus, your accuser always has enough time to go to court and ask for a longer-lasting restraining order.
When issuing emergency protective orders, judges can include most of the provisions domestic violence victims get with regular restraining orders. For instance, you may be ordered to leave the home you share with the accuser and not have any contact with them or their family members. Likewise, they may get temporary custody of your kids.
Restraining Order After Court Hearing
Whether or not a temporary restraining order gets issued, a hearing will be scheduled for the final restraining order. Afterward, the judge may issue the so-called “restraining order after hearing.” with a validity of up to five years. Nonetheless, if the order doesn’t come with a termination date, it’s valid for three years from the date of issue.
In the last three months before the restraining order expires, your accuser can petition the court to extend it for five more years or permanently. The extension can be made without proof of further abuse.
Provisions of Permanent Restraining Orders
A restraining order is meant to protect victims of domestic violence from further abuse and harassment. Restraining orders issued after hearing can:
- Order you not to stalk, threaten, or abuse the accuser, your kids, or their family members
- Order you to avoid coming within a specified distance of your alleged victim and avoid making any form of contact
- Grant the accuser exclusive possession, care, or control of pets owned by you, and order you to stay away from the animals
- Order your eviction from the home you live in together even if you own the house, or the accuser isn’t the primary renter
- Forbid you from purchasing or owning firearms and ammunition
- Order you to pay spousal and child support if you’re married
- Grant your accuser temporary ownership of jointly-owned property
- Order you to attend counseling sessions or a batterer’s treatment program
Restraining Order Violation
If you violate the terms of the restraining order, you’ll have committed a crime. Thus, the court will either fine you or send you to jail. Violating a domestic violence restraining order is considered a misdemeanor under California’s Penal Code 273.6. However, as a restrained individual, you can only get prosecuted if the district attorney proves the following beyond reasonable doubt:
- The restraining order got issued by a court lawfully
- You were aware of the restraining order
- You could comply with the restraining order
- You willfully refused to comply with the restraining order
If the defendant willfully violates a temporary restraining order, the chances are that a permanent restraining order will get issued. Likewise, restrained individuals who violate domestic violence restraining orders in California can have contempt of court charges brought against them.
What to Expect at Restraining Orders Hearings
The Hearings May Not Start Immediately
As with other criminal proceedings, restraining order hearings may not proceed right away. Although cases involving domestic violence restraining orders receive statutory priority and are set within three weeks, hearings don’t always start immediately. This often happens when a continuance gets granted, the matter is sent for a family law trial, or the court doesn’t have sufficient time to hear the matter.
Respondents Qualify for One Continuance
In most restraining order hearings, the restrained parties have a right to one continuance. Thus, they can request a continuance without showing a good cause. Conversely, the protected party doesn’t have the same right. Nonetheless, either party can get a continuance if they convince the judge that it’s necessary.
Temporary Orders Can Get Modified
Temporary restraining orders can only get modified. Hence, during the hearing, you only have the opportunity to request an amendment to the restraining orders. Your attorney can also negotiate with the parties involved and help you to obtain an amendment. Typically, amendments come up when the temporary restraining order affects your ability to work, attend school, or exchange the kids for visitation.
Previous Acts of Abuse Are Relevant
Past acts of abuse or violence towards your accuser often form an evidentiary basis for issuing permanent restraining orders. California courts may regard “reasonable proof” of previous abuse as part of their decision when granting restraining orders.
The Burden of Proof Lies With the Protected Party
Your accuser must prove that a restraining order is necessary to prevent future acts of domestic abuse or violence. They must also provide both sides with a cooling-off period. Typically, the preponderance standard is the most basic burden of proof standard issued by the court.
The Prevailing Side Can Request Legal Fees
California’s family code allows the party that prevails in domestic violence restraining order hearings to request attorney’s fees. However, the fees aren’t mandatory. On its part, the court has discretion whether to award the attorney’s fees and how much. If you prevail and request fees, you must submit an Income and Expense Declaration (FL-150) in court.