A protective order is legally used to prevent contact between two people, one of whom is a victim of harassment, abuse, stalking, or threats of harm, and the other is the perpetrator. These legal orders contain specific actions the restrained person must abide by to prevent further physical, economic, or emotional harm against the victim. Courts issue protective orders to protect individuals, families, and children. Some protection can extend to businesses and friends in case of workplace violence or civil harassment.
They are more common in domestic violence situations, where a victim faces abuse, threats, or harassment from a person with whom they have an intimate relationship. Once a protective order is effective, the restrained person can face severe consequences, including an arrest and criminal charges for violating it. Consult a skilled protective order attorney to understand how these legal tools work if you need one or someone has obtained one against you.
An Overview of California Protective Orders
Protective orders are court-issued orders that protect individuals, people, or businesses from harassment or harm. They are issued in different situations according to the need, including domestic violence, criminal cases, and civil harassment. They aim at restricting the movement, actions, or behavior of the restrained person to prevent further abuse, harassment, threats, or stalking against the protected person. Some protective orders could require the restrained person to move from a shared residence or stop visiting the places they love to avoid contacting the protected person.
Courts issue protective orders after an application by a victim of abuse or harassment, except in emergency protective orders, which the police obtain on behalf of a victim. The judge will review the application, consider its basis and the need to issue the order, and determine the restrictions to include. The order is issued to the applicant, who ensures it is served to the restrained person for the order to take effect. The protected person can use an adult, the police, or a hired process server to ensure the restrained person receives it within a reasonable time.
Here are the types of protective orders under California law:
Criminal Protective Orders
Criminal courts issue these protective orders to protect victims of criminal acts and witnesses during legal proceedings. They restrict contact between an alleged perpetrator and the victim or witness. Some of the orders or restrictions in these orders include a stay-away order that prevents any form of contact between the two parties, including direct and indirect contact (via email, texts, social media, or third party). Criminal protective orders also prevent threats, harassment, stalking, or any behavior or action that could intimidate or create fear in the protected person.
Domestic Violence Protective Orders
These are very popular types of protective orders that protect victims of abuse, threats, and harassment in a domestic setting. Except for an emergency protective order, which a victim of domestic abuse can obtain with the assistance of the police, other domestic protective orders require an application by the victim. They must provide a detailed account of the kind of abuse, threats, or harassment they face for the court to issue an order of protection. Domestic violence protective orders contain different restrictions against the restrained person, including no-contact orders and stay-away orders. Additional instructions could exist if the two parties have joint properties, children, or pets.
Civil Harassment Protective Orders
These types of protective orders protect an individual, person, or business from threats, violence, or harassment by someone or people they are not related to. They can prevent contact between the two parties, or a stay-away order against the restrained person or people.
Emergency Protective Orders
These are mainly issued in domestic violence situations. When a person reports a domestic violence situation, a responding officer can help them seek emergency protection against their abuser from a judge. These orders are available around the clock and do not require a court process. They also offer temporary protection before the victim seeks further protection by filing a criminal case against their abuser or filing for a permanent protective order.
How Long Will a Protective Order Last?
Different protective orders vary in the kind of protection they provide and their validity. You should familiarize yourself with how they work and the details of the specific one you intend to file for, to know how long the order will remain in effect after obtaining it. A skilled restraining order attorney can provide the information you need for effective decision-making.
Some protective orders last only a few days, while others can remain effective for years. The exact time depends on the need and the type of order you file for. For example, an emergency protective order is only temporary. It can remain in effect for five to seven days, within which you can file a case against your abuser or file for a permanent protective order. Your attorney will advise you on the best approach, based on the details of your domestic violence situation.
Courts also issue preliminary injunctions in civil cases to prevent the restrained person from actions or behaviors that can affect the case’s status quo during a legal process. These injunctions are also temporary and become ineffective at the end of the court process. If the victim needs further protection, they can apply to the court, based on the kind of protection they need. In criminal cases, especially domestic violence cases, courts issue temporary restraining orders. These last between 21 and 25 days, or until a judge hears and determines an underlying case for a permanent order. Once the court concludes the case, the order is lifted, and the victim of abuse can file for permanent protection if they need it.
Permanent protective orders can remain in effect for years. Within that time, it will be unlawful for the restrained person to act or behave in a certain way towards the protected person. If the court issues a protective order for two or three years, it will be ineffective once the time elapses. If you need further protection, you can renew the order shortly before it expires. However, you must provide evidence that you are still at risk of harassment, abuse, or threats for the court to issue the protective order.
The Process of Obtaining a Protective Order
Except for emergency protective orders, courts do not automatically issue protective orders. A victim of abuse must file for protection in court to receive an order. The exact process depends on the type of protective order you want or the protection you seek. You must also meet the precise requirements for the order you need for the court to grant your petition.
Remember that emergency protective orders require the help of a law enforcement officer. When the police respond to a domestic violence case, they can advise and assist a victim to seek a court’s protection against their abuser. Courts issue these orders around the clock, meaning you can receive one almost immediately after applying. The order will keep you apart from your abuser for a few days as you sort out the underlying issue or as you prepare to file a case against them.
Other protective orders require the victim of abuse to file for protection and follow the necessary legal process before the order is in effect. If you are a victim of stalking, harassment, or abuse, start by reporting the matter to the police. An officer will guide you on how to file for a protective order if you need one. Your application should have evidence of abuse, harassment, or stalking, which must have taken place over a particular period or be severe enough to cause you reasonable fear for your safety.
Once they receive your petition, the judge can schedule a hearing to determine the circumstances of your case and your eligibility for a protective order. The hearing is usually an Order to Show Cause hearing, whereby you should present evidence, in pictures, videos, or written statements, regarding the abuse, harassment, or stalking. You can call in witnesses to verify and strengthen your claim. The alleged perpetrator can be requested to be present at that hearing to provide their story. This helps the court make practical decisions regarding permanent protective orders.
You can file for protection after filing a domestic violence case. The judge will hold a preliminary hearing of your case to determine the type and severity of your danger. You could be issued a temporary restraining order if you meet the required criteria, usually valid for about 21 days, or until the judge hears and determines your case. You can file for a permanent protective order after the temporary one expires if you need further protection from the restrained person.
The Violation of Protective Orders
If you are eligible for a protective order, the court will issue it after a successful application. However, the order does not go into effect until the restrained person receives it. Although the protected person cannot serve the order to the restrained person, they must ensure the restrained person receives it. You can request a police officer, anyone over 18 (an adult not involved in the case), or your attorney to serve the order. Alternatively, you can hire a process server to do it. If the restrained person is present in court when the judge issues the order, they will be served there and then.
Violating a protective order occurs when a restrained person goes against any of the restrictions or orders in a court-issued order. This is a severe matter that carries severe consequences, including possible criminal charges and arrest. To avoid these, you must abide by the order's provisions for the period it remains in effect. If you are unhappy with some restrictions, you can request the court to modify the order. Before then, you should abide by its conditions. You can violate a protective order in many ways, including the following:
Establishing Contact With the Protected Person
The restrained person is responsible for ensuring they do not have any contact with the protected person. You violate a protective order if you establish direct or indirect contact. Direct contact means physical contact, which can happen if you visit the protected person’s home, place of work, or the places they frequent. This is still a severe violation of the order, even if you did not intend to harm them or wanted to apologize.
Indirect contact is also prohibited, which can be done through texts, emails, phone calls, or through third parties. If communication is necessary, you must do it through your attorney.
Living or Coming Close to the Protected Person
Some protective orders have a stay-away order, which requires the restrained person to stay within a particular distance of the protected person. If this order applies to you, you must not come, work, or even live close enough to the protected person to cause them anxiety or reasonable fear for their safety. If you share a home or business with the protected person, you must find somewhere else to live or work until the order expires.
You could also be expected to find new places to hang out if the places you love are the same as the places the protected person frequents, or are close to where they work or live.
Failure to Comply with Court-Ordered Restrictions
If the protective order prevents you from harassing, stalking, abusing, or threatening the protected person, you will be in violation if you continue the prohibited behavior. Engaging in any conduct that will put the protected person in fear for their safety or the safety of their loved one is a grave violation of a protective order. This includes harming pets, damaging property, or leaving threatening messages in places where they will find them.
The Consequences of Violating a Protective Order
When a restrained person violates a protective order, the protected person can report it to the police. Remember that violating a protective order is a severe violation of the law. Thus, you could be arrested and charged with contempt of a court order. You can also face additional charges depending on how you violated the order. If the violation includes threats of violence, violence, harassment, or stalking, the prosecutor can file respective criminal charges against you, on top of charges for violating a court order. Here are the typical consequences of violating a protective order in California:
Criminal Charges
Violating a protective order is a criminal offense. Remember that a protective order is a court-issued legal order, meaning that you will be in contempt of a court if you violate it. It also means that you could be arrested and charged, just as in all criminal violations. Violating a protective order can lead to misdemeanor charges under Penal Code §166 or §273.6. Violating a protective order can also result in misdemeanor charges under PC 273.6. You could be sentenced to six months in jail and $1,000 in court fines if found guilty.
You could face additional penalties for violating a protective order, depending on the exact details of your case. For example, if the violation is of a domestic violence protective order or you had a firearm, the prosecutor can file felony charges, based on the circumstances of the violation. Felony charges will attract a harsher penalty upon conviction.
Increased Penalties for Subsequent Offenses
A violation of a protective order can also result in a harsher penalty for the underlying or subsequent offense. Judges do not take such violations lightly and can decide your sentence based on it. For example, if you face domestic violence, harassment, criminal threats, or harassment charges, and you violate a temporary protective order, the violation can count during sentencing.
It Can Affect Other Legal Proceedings Against You
Violating a protective order can affect other legal proceedings, like child custody. If you violate a domestic violence protective order, and there is a pending custody case in court, the judge can use the violation against you when ruling on the custody case.
Defending Yourself Against Violating a Protective Order
When you violate a protective order, the protected person can report the violation to the police, who can obtain a warrant for your arrest. The judge will hold a hearing following your arrest to determine the circumstances and nature of the violation. They will issue a final ruling based on the defenses you use against your charges. You need the help of a competent restraining order attorney to fight these charges and avoid facing severe consequences. Some of the defenses you can use, with the help of your attorney, to fight for a favorable outcome in this hearing include the following:
You Did Not Know About the Protective Order
A restrained person is only guilty of violating a protective order if they know its existence. Remember that the protected person must ensure that the restrained person is well served with the order immediately after receiving it from the court. A restrained person will not receive the order if it is poorly served. For example, if the protected person sent the order by mail or left it at your door, there is a chance that you did not receive it.
A protective order goes into effect once the restrained person is served correctly. The court will dismiss your charges if you prove you did not know about the order.
You Are Falsely Accused
It is not unusual for a protected person, or someone else, to accuse you of violating a protective order to get even with you, for vengeance, or out of jealousy. False accusations are widespread in criminal justice systems. However, you must support your claim with evidence to convince the court that you are innocent of all your charges. For example, if you are accused of being in a particular place the order prohibits, you can call a witness or provide an alibi to counter the allegations.
The Violation Was Accidental
You can accidentally violate a protective order in many ways. For example, if you appear at the same place as the protected person and do not know they will be there, you are not guilty of violating a stay-away or no-contact order. Your skilled attorney will present your defense well to convince the court that, although there was a violation, it was unintended. If this works, the judge will dismiss your charges.
You Acted in Self-Defense
You can defend yourself using force if you face an imminent threat of harm from another person, in this case, the protected person. You can also use force against a threat to protect another person from imminent danger. However, you must not use more force than necessary in self-defense. The prosecutor will use this against you, especially if the force was more than you needed to protect yourself from the danger you faced.
An aggressive attorney can help in this case. They can argue that the violation was necessary to protect yourself or another person from danger. For example, you can violate a domestic violence stay-away order to protect your loved ones from imminent danger. You can also use force against the protected person if they threaten your safety. The court will dismiss your protective order violation charges if this defense works.
Find a Skilled Restraining Order Attorney Near Me
Safety and protection are paramount in all situations. If you cannot adequately protect yourself from harassment, abuse, stalking, or violence, you can obtain a restraining order from the court. A competent restraining order attorney can explain the type of protective order you need and the application process. You also need legal help if someone obtains a protective order against you. An attorney will ensure you understand what the protective order means, its restrictions, validity, and how to modify or cancel it. We can also help you fight a protective order violation charge for a reasonable outcome.
At Goldman Flores Restraining Order Law Firm, we help people seeking protection and those against whom protective orders are issued. We will help you understand your situation's legal implications, options, and how best to fight for a reasonable outcome. Call us at 213-341-4087 for more comprehensive details about protective orders in California and our services.
