A temporary restraining order (TRO) is a legal protective measure that protects people from threatening situations, harassment, and violence. It also imposes restrictions on aggressors. Sometimes, the allegations are false or exaggerated. If you are facing an unfair restraining order, you should take immediate action to fight it. This is because a TRO can affect your freedom, reputation, and future. Whether you are seeking a restraining order against an aggressor or fighting an order issued against you, this article covers everything that will help you navigate your situation effectively.
Defining Temporary Restraining Order
The court grants temporary restraining orders as short-term protective measures to protect a person facing immediate threats of harm. A TRO legally restricts you from approaching or contacting the petitioner who filed the request.
In California, a judge can issue a TRO even when you are absent. You may discover the allegations against you only after receiving the order through the official service. The court issues a TRO as an emergency protection before conducting a formal hearing to determine whether the restraining orders should be extended.
Some of the restrictions of a TRO include the following:
- No contact with the petitioner (in person, by phone, email, or social media)
- Staying away from the petitioner’s home, workplace, or school
- You must move out of a shared residence
- Surrendering firearms to law enforcement
As a petitioner, the TRO will give you:
- Exclusive ownership of the home
- Child custody, although temporarily
- Peace and freedom from the restrained person
The violation of a TRO in California is a criminal offense. After receiving a restraining order, you must obey all its terms until you can challenge it through a legal hearing.
Who Can File for a Restraining Order in California?
Any person in California who experiences harassment, abuse, threats, or violence has the right to file for a restraining order. The type of restraining order depends on the relationship with the other person.
To request a Temporary Restraining Order (TRO), you must demonstrate that you have experienced any of the following:
- Domestic violence: Abuse or threats from a spouse, former spouse, romantic partner, co-parent, or close family member.
- Civil harassment: Unwanted contact, stalking, or threats from someone who is not a close family member.
- Workplace violence: Threats and harm targeting coworkers, employers, or customers.
- Elder or dependent adult abuse: Harm or neglect of a senior citizen or dependent adult by a caregiver or family member.
A TRO can be issued the same day you apply, often without first notifying the accused. The judge only has to hear from you before issuing the order. The process can sometimes result in false or overstated claims. However, the person you seek protection from will have the opportunity to challenge it in court during a court hearing.
Types Of Restraining Orders
California has four types of restraining orders, each designed for different situations. The type of restraining order issued depends on the relationship between the parties and the nature of the alleged harm.
Domestic Violence Restraining Order (DVRO)
A Domestic Violence Restraining Order becomes effective when the petitioner files an abuse claim against someone they have a close family connection with. This includes:
- Spouses or ex-spouses
- Current or former romantic partners
- Co-parents of a child
- Close family members (parents, children, siblings)
Your accuser can petition for DVROs to protect against physical and emotional mistreatment, threats, stalking, and harassment. A restraining order restricts you from contacting the petitioner or entering their home or workplace space and affects child custody decisions.
Civil Harassment Restraining Order (CHRO)
The Civil Harassment Restraining Order is for cases where the alleged harm comes from someone who is not a close family member or romantic partner. This can include:
- Neighbors
- Roommates
- Friends or former friends
- Distant relatives
- Co-workers or acquaintances
The requirements for obtaining CHROs exceed those of DVROs because proving civil harassment demands more substantial evidence under the law. To obtain a CHRO, you need to prove you experienced genuine emotional distress because of what the other person did.
Workplace Violence Restraining Order (WVRO)
An employer has the right to seek a workplace violence restraining order for an employee to protect them against:
- Threats or harassment by a coworker, customer, or employer
- Violence, stalking, and acts of physical harm at their place of employment.
- Genuine threats that endanger their safety.
The employee lacks the authority to initiate a WVRO. The employer is the one to file this restraining order as their representative.
Elder or Dependent Adult Abuse Restraining Order (EARO)
The restraining order protects a person who meets either of these criteria: being 65 years old or older or being between 18 and 64 years old with physical or mental disabilities who experience abuse, neglect, or financial exploitation. It protects them from:
- Physical or emotional abuse
- Neglect or abandonment
- Financial fraud or exploitation
The victim or any concerned third party, such as a caregiver or social worker, can request an Elder or Dependent Adult Abuse Restraining Order (EARO).
The Temporary Restraining Order Process
A Temporary Restraining Order (TRO) process operates quickly throughout California. The court approves TROs the same day after someone files for one without informing the accused. TROs are ex-parte, which means you could be legally restricted even though you were not notified of any application made against you. If you are seeking protection, you should take the following steps:
Filing a TRO Request in Court
You start by submitting legal documents to the court, explaining:
- Why you need protection
- What type of harm or threats you are experiencing
- Who do you need protection from
The required legal documents must be submitted to family or civil court, depending on the restraining order you seek.
The Judge Reviews the Request
The judge usually examines your request on the same day. They then determine if the presented evidence warrants the approval of a restraining order. The TRO takes effect immediately after the judge approves it. You can request a full hearing if the judge rejects your TRO application.
You should note that in most cases, you will not be notified or present during the review process. The judge bases their decision exclusively on the statements given by the petitioner.
Delivering The TRO Document To The Respondent
A TRO becomes effective only after you receive it. You will receive the TRO from:
- A law enforcement officer
- A professional process server
- Any adult who is not involved in the case
Once you receive a TRO, you must follow the restriction for 21 days before you can attend a full hearing to defend yourself. You must read the document thoroughly because breaking any order terms through mistake or intent could lead to criminal prosecution.
The Judge Schedules a Hearing
The court schedules a full hearing (Order to Show Cause hearing), which must take place within 21 days of the TRO’s issuance. At this stage, you obtain your first opportunity to share your perspective. The judge could issue a permanent restraining order by default if you do not appear for the full hearing.
You can use this hearing to defend yourself against a TRO that has been served to you. A criminal defense attorney could help you fight false accusations so the restraining order does not become permanent.
The TRO Hearing
During the hearing, the judge listens to both parties before deciding the duration of the restraining order. Failing to attend the hearing will lead the judge to issue a permanent restraining order effective for up to five years.
If you filed for the restraining order, you must provide evidence before the judge and explain why you think the order should stay in effect. You will also submit supporting documentation like messages, photographs, and witness statements. If you are fighting a TRO, you must challenge the false accusations and present your defense.
You must prepare yourself thoroughly before the hearing. You should present any evidence, including opposing texts, emails, social media messages, and surveillance footage, to show that the accusations are baseless.
Your case becomes stronger when you have witnesses who can testify on your behalf. You should be composed and maintain control of your emotions during this process. The behavior of both parties during court proceedings is as essential to judges as the content of their statements. Aggressive behavior and interruptions directed toward the other person could work against you.
The judge will grant a restraining order extension when you fail to appear, even though they have not listened to your defense. That means you could face severe restrictions on where you can go, who you can contact, and whether you can own a firearm, all without getting a fair chance to defend yourself.
However, if you and the restrained person attend the hearing and present your evidence, the judge will decide whether to dismiss the order, modify it or extend it for up to five years.
Making the TRO Permanent
A TRO lasts up to 21 days, and a hearing is held. You could extend the TRO and make it permanent by presenting evidence of why you need more protection during the trial. If the judge agrees to your request, you could enjoy the protection for extended periods. If granted, the permanent restraining order could last up to 5 years. To extend the permanent restraining order, you can file another application 3 months before your restraining order expires.
Consequences for Violating a Restraining Order
Violating a restraining order in California could lead to severe legal consequences. Disregarding a restraining order, even if you believe it is unjust or built on untrue statements, will result in your arrest, potential fines, and imprisonment. The severity of the penalties depends on whether this is your first offense and whether you used violence or threats during the violation.
California Penal Code 273.6 PC classifies a restraining order violation as a misdemeanor offense. If convicted, you could face up to one year in county jail, a fine of up to $1,000, and probation with mandatory counseling.
The charge will become a felony when you have a history of violating restraining orders or when the current violation involves violent behavior, threats, or injuries to the protected person. You could face up to three years in state prison and a fine of up to $10,000.
A restraining order violation could result in a permanent criminal record and impact your employment opportunities and ability to find housing. It can also result in the loss of gun rights and affect your immigration status if you are not a U.S. citizen.
Even an unintentional violation of a restraining order can result in legal consequences. It is best to avoid any contact even if the protected person initiates communication. The restraining order continues to limit your actions, so any communication, no matter how harmless, can be evidence against you.
Defending Violation of a Restraining Order Accusations
Being accused of violating a restraining order in California can be overwhelming, and you may think everything is against you. False allegations sometimes arise in restraining order cases. If you are defending against a violation charge, your lawyer may argue by presenting several defenses, such as:
Lack of Knowledge
You cannot breach a restraining order if you do not know of its existence. The law in California requires that the protective order be adequately served to you to enforce its terms upon you. Your attorney can defend you by showing that law enforcement or the petitioner did not provide proper notification regarding the restraining order restrictions.
No Intentional Violation
The prosecution must demonstrate beyond reasonable doubt that you deliberately breached the order. The court will not necessarily convict you if you accidentally encounter the petitioner in public or unknowingly enter restricted areas. Your attorney can defend you by showing you had no intention to violate the order.
False Accusations
Unfortunately, some people misuse restraining orders as a weapon in divorce, custody battles, or personal disputes. Your attorney can demonstrate to the court that the petitioner’s evidence was falsified by presenting text messages, emails, and witness testimony contradicting their statements.
The Petitioner Initiated Contact
Even if the petitioner contacts you first, you must adhere to the terms of the restraining order. Their contacting you does not mean that the restraining order is not practical. However, you can use this initiation as evidence in court to show that you are not the aggressor.
Text messages, phone calls, and visits from the petitioner may create doubt about their earlier statements that you presented immediate harm or fear for them. Your accuser contacting you first demonstrates their willingness to communicate and that you do not pose any threat.
If you are a petitioner, you should document any violations carefully and report them to law enforcement. This could strengthen your case against the aggressor and convince the judge to extend the restraining order.
Find a Restraining Order Attorney Near Me
A temporary restraining order protects a victim against harassment and violence, but may also subject the aggressor to restrictions based on accusations against them. Knowing the legal process for obtaining a TRO will help ensure your safety. Also, a strong defense can help protect your rights, reputation, and future if you are fighting an unjust restraining order.
You want to seek legal counsel, whether you need to file for a TRO or want to challenge one. At Goldman Flores Restraining Order Law Firm, we assist clients seeking protection through TROs and also defend against unfounded restraining order accusations across California. Contact us today at 213-341-4087 for a free consultation.
