An Emergency Protective Order (EPO) is a potent, high-stakes legal instrument that offers immediate relief in volatile circumstances. In contrast to typical restraining orders, where petitioners submit to a courthouse, an EPO is requested by law enforcement officers, usually at the location of a domestic disturbance, and may be approved by a judge 24/7 over the phone.
Since these orders are issued ex parte, that is, the restrained party is not present to provide a defense, they may lead to the instant loss of access to the home, custody of children, and gun rights. Even though EPOs are crucial in providing safety, sometimes, they are founded on exaggerated or false allegations that arise in the state of extreme emotions.
This blog discusses the legal stipulations of EPOs under the California Family Code, the strict limitations that are brought about by these orders, and the measures that you should take to protect your rights before the order lapses.
What Emergency Protective Order (EPO) Mean
Under California law, an emergency protective order (EPO) exists to fill the gap between a crisis and a formal hearing in a court. Although you may be conversant with the overall idea of a restraining order, the EPO is unique in that it does not require the victim to visit a court to initiate the procedure.
Rather, this order is most common after a 911 call has been made, with the police officers arriving on the scene of what is reportedly a domestic disturbance. The officers are the main investigators and double as the only gatekeepers of this legal remedy. They consider the instability of the situation and determine whether the present environment has an unacceptable risk of harm in the future.
The Judicial Process
The process starts with a law enforcement officer determining that a person is in imminent danger. Here, an officer directly calls a judge or court commissioner who is on call 24 hours a day. The officer outlines the accusations of abuse or threats and reasons why they need protection immediately.
The judge bases their decision solely on the testimony of the officer and the statement of the alleged victim. This verbal permission is then documented on a certain form, which the officer signs on behalf of the judge. Since this occurs during the middle of the night or during weekends, you are usually taken by surprise at how fast your legal status is changing.
Ex Parte Nature
This one-sided process is called ex parte, which means that the order is issued without your knowledge or involvement. At this point, you are not allowed to make any defense or cross-examine your accuser. The court defends this aberration of ordinary due process by saying that it is in the best interest of the alleged victim to be safe now and that the victim's original right to be heard must therefore yield.
You are notified when the judge has already made the decision. This presents a scenario in which you are legally bound to an agreement of stringent terms even before you can consult an attorney. You are, in effect, being compelled to abide by a court order that has been established on the basis of evidence that you have not yet viewed or refuted.
Statutory Grounds for Issuing an EPO
Judges do not issue EPOs without satisfying certain statutory criteria. These requirements are mainly found in Family Code Sections 6250 and 6251. The judge has to determine that there are reasonable circumstances to suspect that an individual is in imminent and current danger of domestic violence.
Domestic Violence
To have a domestic violence EPO apply to you, there must be a certain form of relationship between you and the party being protected. This involves cases where you are married, divorced, separated, dating, or dating the person. You, too, are included in this category when you live together, have a child together, and are closely related by blood or marriage.
The law has a broad definition of abuse that not only covers physical battery but also sexual assault and placing a person in a reasonable fear of imminent great bodily injury (GBI). Even verbal threats may be enough if the court feels that such threats represent an imminent threat of physical assault.
Child Abduction and Abuse
A judge can issue an EPO when there is a suspicion that a child is at risk of being abused or abducted. You know this ground is common in high-conflict custody cases where one parent claims that the other wants to take the child out of the jurisdiction. The court seeks to find evidence of threats to kidnap the minor in the recent past or abusive conduct in the past, which was directed at the child.
The EPO gives a requesting parent temporary sole physical and legal custody in such cases. Then, you are not allowed to have any interaction with your child, which can be emotionally devastating and a bad example of how future custody cases are handled.
Elder and Dependent Adult Abuse
You can be placed under an EPO if you are a caregiver or a relative of an elderly person or a dependent adult. The Welfare and Institutions Code (WIC) provides that an EPO is appropriate if a person aged 65 or older is at risk of physical abuse, neglect, or abandonment.
In most cases, financial abuse is not the only reason to issue an emergency order unless threats of physical abuse accompany it. The court concentrates on the susceptibility of the victim and the urgent necessity to ensure the physical security of the victim. The judge may order you to stay away if they feel that you have denied the elder the basic needs or caused him mental pain.
Mandatory Provisions and Restrictions
When an EPO is issued, it is like you are instantly under a set of limiting requirements that can change all parts of your life. These are not recommendations but are requirements ordered by the court and enforced by the full power of the law. The order usually has three main elements:
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Stay-away orders
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Personal conduct orders
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Residence exclusion orders
These terms are meant to provide a physical and computerized division between you and the party that is being protected. These orders are frequently far more extensive than you would expect and can be extended to include the children and pets of the victim.
Residence Exclusion
The residence exclusion order, often called a “kick-out” order, is perhaps the most disruptive provision you can face. This order is to vacate your house as soon as possible, whether you are the sole owner or the first tenant on the lease. You have a limited amount of time, as little as 15 to 20 minutes, to collect some personal belongings under the scrutiny of a police officer.
You are then not allowed to come back to the property until the order is over. You are not allowed to enter the premises, even to pick up mail or to collect forgotten items, without a law enforcement escort. This may make you homeless and in need of finding temporary housing at a high cost.
Personal Conduct and Stay-Away Mandates
Personal conduct orders do not allow you to practice certain types of conduct that the court considers harmful to the person who is being protected. You are directed to cease:
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Harassing
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Attacking
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Striking
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Threatening
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Stalking
You are also not allowed to contact them in any form, such as:
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Phone calls
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Text messages
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Emails
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Social media interactions
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A third party contacting the protected victim on your behalf
Also, stay-away orders have you keep a certain distance, typically 100 yards, between you and the following:
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The protected person
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The protected person’s residence
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The protected person’s place of work,
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The school of the protected person’s children
These orders are well upheld, and even a mere accidental meeting in a social setting can result in your arrest.
Immediate Firearm and Ammunition Relinquishment
When an EPO is served, you are immediately and automatically deprived of your Second Amendment rights. California law forbids you from owning, possessing, or buying firearms or ammunition as long as the order remains in force. Within 24 hours of service, you shall hand over your weapons to the local law enforcement or sell them to a licensed gun dealer.
You must also furnish the court with a receipt that you have done this relinquishment. Any failure to do so is a different criminal offense and may be presented against you in subsequent hearings as an indication of your dangerousness. This ban is logged into the California Law Enforcement Telecommunications System (CLETS), and it is accessible to all officers within the state.
Duration and the Transition to Future Protection
An EPO is a temporary order meant to serve as a temporary measure until the court can handle a more formal protection request. There is a limited period of time during which you are under the EPO, but it is a crucial time for both sides. This time is taken by the person who is being protected to obtain a temporary restraining order (TRO) in the Superior Court that provides more lasting protection. This is the time you need to seek legal representation and prepare to shift to a more permanent legal battle. Learn the timeline so that you can comply and defend yourself.
The 7-Day Rule
An EPO is not permanent but has an expiry date. An EPO by law is only valid for a maximum of five business days or seven calendar days, whichever is less. The face of the order will have to be examined to determine the specific date and time it expired. Until that time, you are under the complete burden of the restrictions.
The legal limitations placed on you will disappear if the protected party fails to seek a TRO before the expiration of the EPO. But you must not think that the danger has gone because the clock has run out. The police advise the majority of victims to go to the courthouse to get the protection extended past the seven-day period.
Moving Toward a Permanent Restraining Order (PRO)
The lapse of the EPO normally marks the start of a more protracted legal procedure. If the individual who is under protection submits an application for a domestic violence restraining order, a judge will examine their written statement and probably grant a TRO. You will then be handed over a new copy of documents that contains a notice of a court hearing.
This is the hearing referred to as the Order to Show Cause, and at this stage, the judge decides whether to grant a Permanent Restraining Order (PRO) or not, and the duration of the order should be no more than five years. What you need to realize is that the evidence collected during the EPO period, such as any contact with the police or any alleged infractions, will be highly examined during this hearing.
Consequences of Violating an EPO (Penal Code 273.6)
Breach of any of the conditions of an EPO constitutes a grave criminal offense according to the California Penal Code: 273.6. Although the individual under protection may be inviting you or even making contact, it is you who may be arrested for a violation.
The order is not a mutual agreement between two people but a command by the court to you. The consent of the victim cannot be used in defense if you are found in their company. The law considers an infraction an act of disrespect to the authority of the court. This results in instant arrest and criminal charges that may plague your record for years to come.
Misdemeanor Penalties
The majority of the first-time offenses of an EPO are charged as misdemeanors. If you are found guilty, you will be subject to one year in county jail and a fine of up to $1,000. You will also be put under formal or informal probation for a few years. The court can also make you visit a mandatory batterer intervention program, which is usually fifty-two weeks.
Moreover, you can be directed to make restitution to the victim because of any counseling expenses or property damage caused by the violation. The other thing to take into account is the collateral consequences, that is, the loss of your employment if you are to serve jail time or if your employer finds out about the conviction.
Felony “Wobblers”
A breach of an EPO may turn into a felony in some circumstances. This crime is a wobbler in California, which means that a prosecutor may decide to prosecute it as a misdemeanor or a felony. You are charged with a felony if you have previously been convicted of a violation of a restraining order in the past seven years, and the violation that was committed was an act of violence or a threat of violence that was credible.
A felony conviction is a sentence of 16 months, two or three years in state prison, and a fine of up to ten thousand dollars. You will also lose your right to own firearms forever and have serious impediments to housing and work as a convicted felon.
Long-Term Impacts on Professional Licensing and Background Checks
Although you may not get convicted of a felony, the fact that you were even found guilty of a violation of a restraining order can be devastating to your record. These violations are taken seriously by many professional licensing boards, including the nursing, teaching, and law boards. You can be subjected to disciplinary measures or have your license suspended.
Also, since the EPO and any other violations are recorded in the CLETS database, they will be reflected in a background check by a prospective employer. You will not be able to get jobs in government, education, or any other area where a lot of trust is needed. You are basically labeled as an individual who has a history of non-compliance and volatility.
Legal Strategies for Challenging an EPO
You can challenge an unwarranted EPO, but within the confines of the legal system. Since the EPO is granted ex parte, your initial actual opportunity to present your case is during the PRO hearing. This hearing should be approached with a detailed plan that would help to disqualify the false accusations and prove that you are not a danger. A careful examination of the police reports, statements of the party that is being protected, and physical evidence.
Identifying False Allegations and Lack of Evidence
Many EPOs are premised on exaggerations or downright lies. If there's a divorce where one of the spouses desires to have an upper hand in a child custody battle. The first part of your defense is to find inconsistencies in the story of the party you are defending. You are to seek medical records that do not support the allegations of injury or electronic records that indicate that the so-called victim is the one who started the threats or harassment.
If you can demonstrate that the so-called incident did not occur or escalate to the stage of immediate and present danger, the judge is less inclined to convert the EPO into a permanent order. Also necessary in such cases are character witnesses and alibi evidence.
Lack of Service or Intent
There are many possible defenses to the charge of breaching an EPO. You cannot be found guilty of a violation unless the prosecution can show that you were aware that the order was in place. If you were not served with the documents properly or notified by an officer, you cannot be held liable for a breach.
Also, the breach has to be intentional. You can defend yourself by saying that the contact was incidental, like bumping into the same restaurant with the person under protection without knowing it.
You can also say that the conditions of the order were so unclear or incomprehensible that you did not have the current capacity to obey. Your attorney will use these holes in the case of the prosecution to request the dismissal of the charges.
Get a Restraining Order Attorney Near Me
To maneuver through the intricacies of an emergency protective order (EPO), you should act decisively. Since an EPO does not last more than seven calendar days, the time to avoid these restrictions becoming a multi-year permanent restraining order (PRO) is extremely limited. Professional representation is necessary whether you want to ensure your safety or have to appeal against an unreasoned order that has displaced you.
The Goldman Flores Restraining Order Law Firm focuses on the complex restraining order laws in California. We will help you seek protection or offer a strong defense or advocacy for your Order to Show Cause (OSC) hearing. Do not have a temporary emergency order permanently in Los Angeles change your criminal record, employment opportunities, or parental rights. Call us today at 213-341-4087 to have a consultation and make sure that your side of the story is heard in court.
