If you are experiencing domestic violence (DV), you can seek protection from the court through an order of protection or restraining order (RO). Domestic violence restraining orders (DVROs) are legal injunctions the court issues to safeguard applicants from emotional, financial, or physical abuse from close family members or intimate partners. The goal of the orders is to deter further violence. Unfortunately, the restrained person can violate the DVRO. When this happens, as the protected party, you should know the legal action to take to ensure the restrained party complies and that you are safe. 

Understanding DVROs

A DVRO is a court injunction issued to refrain the accused from inflicting harm, harassing, or threatening the victim. The person seeking protection and the accused are usually family members or intimate partners in the same household. 

The order of protection establishes a lawfully binding and enforceable document that protects the victim in question and their family. Domestic violence extends beyond the victim to the children and community. Victims develop fear, anxiety, and, in severe cases, depression. Some victims even sustain physical injuries that lead to loss of life. Therefore, by prohibiting any contact of the restrained party with the victim, the court prevents escalation of the violence. 

Other protection orders protect you from colleagues, extended family, or acquaintances. Nevertheless, DVROs protect you from the people in your inner circle or those you deeply trust. It is difficult to call the police or seek protection from someone you once deeply cared for and trusted. The decision can take a toll on your emotions, so you require help from a competent professional like a restraining order attorney to help with your request for the DVRO. 

RO Types

There are three types of protective orders the court can issue in DV incidents. The first is the emergency order of protection that the officer responding to the DV incident usually requests on your behalf. These typically last for seven days, pending your application for temporary orders. The responding officer evaluates the situation in your home to determine if you and other household occupants are in immediate threat of harm. If they conclude you are at risk of sustaining injuries, they request a court commissioner who is always on standby to issue an emergency protective order.

Once the orders are issued, the officers will arrest the accused or escort them out of the house, pending temporary orders. The court issues temporary injunctions when you formally request protection from the accused. Before the hearing on the DVRO, the emergency order of protection will have expired, so the court will issue a temporary protective order. Typically, the orders expire after twenty to twenty-five days, within which the restraining order hearing should happen.

The court decides whether to issue a permanent order of protection in the hearing after listening to submissions from the restrained and the protected party. Permanent orders last no more than sixty months and are granted when the court is convinced the protected party requires protection in the future. 

You should know that domestic violence incidents can escalate to the point they turn criminal. In these circumstances, the prosecutor lodges formal criminal counts against the accused, which starts the criminal case process. As the case continues in court, the judge issues a criminal order of protection, which takes effect until the case's conclusion. The orders remain in effect if the accused is convicted for 36 months. 

Conditions for Obtaining a DVRO

Before requesting a DV order of protection, you should ensure that your case qualifies for this injunction. The court will only issue the orders if the individual you seek to restrain has abused or threatened to abuse you. Additionally, your relationship with the accused must be any of the following:

● Ex or current cohabitant

● Ex or divorced spouse

● Ex or current boyfriend or girlfriend

● Biological parent to your child

● Any individual you have a close familial relationship with, like a brother, sister, parent, or grandparent.

You are not the only person that can file for DVRO. You can petition the court for the orders on behalf of your children if they are the ones who are undergoing the violence. However, when the children turn twelve, they can file for protective orders for themselves, although you still reserve the right to do it for them. When they turn 18, you can no longer petition for the orders on their behalf. 

You should know that even if you are ineligible for a DVRO, there are other protection orders you can pursue to keep yourself safe. The best way to understand your options is to consult an experienced protective order lawyer. 

The Protection You Will Enjoy From DVROs

If you are considering a DVRO, you will wonder what behavioral restraints the protective tool will impose on the restrained party. Typically, the court's conditions on the accused depend on your case’s circumstances. Nevertheless, what is familiar with all the injunctions is that the restrained party is instructed to avoid contact with the protected party. Contact encompasses actions like:

● Making phone calls

● Sending text messages

● Interaction on social media platforms

● Causing bodily harm

● Personal contact, including coming within a given distance of the protected

The typical conditions the court imposes include:

● Prohibiting the restrained party from owning or possessing a gun

● Prohibiting joint residence even if you co-own the matrimonial home

● Prohibiting the accused from visiting your home, workplace, or school that your children attend

● Command the abuser to pay child support

● Command the restrained to pay particular household bills

● Command the accuser to pay spousal support

● Command supervised child visitation or custody

● Prohibit the change of insurance coverage

● Prohibit the buildup of bills or expenses that could jeopardize the property the protected party lives on

● Instruct the return of particular items

● Mandatory enrollment in a twelve-month batterer’s rehabilitation or intervention program

For the restrained party, issuance of a DVRO against them means not frequenting places they used to visit often, leasing an apartment elsewhere, or having little to no contact with children. 

Once the court issues the injunctions, the information is updated on all police computers in California, meaning all police officers can access it. Even when you leave the jurisdiction, you still enjoy protection from the DVRO. Nonetheless, you must notify the officers in the new jurisdiction about the orders to ensure they are effected. 

Misconceptions About Restraining Orders

ROs have restrictions. As much as they can do a lot to protect you, they have their limitations. An RO does not formally sever the relationship between you and the restrained. Therefore, if the abuser is your spouse, obtaining the orders against them does not terminate your marriage. They will remain your spouse until you initiate and complete a divorce proceeding. 

Additionally, the orders will not interfere with your parental rights or those of the abuser if you are married. However, when the restrained party is not your spouse or registered domestic partner, you must schedule another proceeding with the court to craft a parentage program that will take effect after the stay-away orders. 

DVRO Consequences

Restraining orders in California are protective tools that prohibit contact between the protected party and the abuser. Different orders impose varying restrictions on the abuser. 

DVROs forbid contact, but the contact differs from one case to another as the distance the abuser should keep from the accuser varies. 

A universal ramification of a DVRO is the loss of firearm possession rights. American citizens are entitled to bear guns. Nonetheless, when served with an RO, they relinquish this right as the court determines that their right could be abused, causing harm to others. So, when a restrained party receives a firearm, it must surrender its possession to the authorities or sell it back to the dealer. 

Steps for Obtaining a Restraining Order

When someone in your household threatens you with abuse, harasses, or injures you, you should contact the police. Nonetheless, if it is not an emergency, you can take time to speak to your attorney about obtaining a DVRO. 

The police will respond and request an emergency protection order if they determine you are under threat. The abuser will then move out of the home and avoid the children for a week. Before the expiry of the orders, you should speak to an experienced attorney to file the necessary paperwork to seek protection. 

All the information regarding your situation is contained in these forms, which makes them easy to complete. However, it is best to have an attorney help you complete the paperwork to avoid delays and ensure the court schedules a hearing for the permanent protective order. Also, you must clearly state in the forms the kind of action you want the court to take against the abuser to ensure you are sufficiently protected, like orders to the accused to vacate the shared home to provide physical separation and lower the chances of the violence recurring. 

Also, in your petition, you should mention all the alleged abuse instances and provide comprehensive details to ensure you have a robust case. 

After completing the forms, you will submit them to the relevant court to officially initiate the process. Ensure you follow all the standard procedures when filing the petition, including paying all the filing fees and presenting the paperwork within the provided timeline. If an emergency protection order exists, the court will grant a temporary injunction that will take effect until the date scheduled for the hearing. 

During the hearing, the petitioner, in this case, the party seeking protection, and the accused, who is the defendant, will present their cases before a judge. With the help of your attorney, you will present facts compelling the judge to impose a permanent protective order. Ensure you bring the police report, medical report, pictures of your injuries, and any other evidence to support the abuse. 

If your children have vital information that could help to substantiate further the threat the victimizer poses to you, you can bring them to court. However, before having your children as witnesses, consult with your attorney or counselor to understand how you can have the children testify. 

The court will then evaluate the facts presented by both sides to issue a verdict. The judge can choose PRO and cancel the temporary one. Besides, they will decide whether it is necessary to issue child support or custody injunctions where children are involved. If the judge grants the DVRO, they will sign the orders and give you five copies, which you will take to the court’s clerk for stamping. Even without the stamp, these orders are enforceable. The final order will then be shared with the restrained party, your children’s school, and the police to help with implementation. The clerk writes a minute during the hearing, so you and the restrained party should take copies if you are confused about the orders.

When you skip this hearing, the court will cancel the temporary protection, forcing you to start seeking protection afresh. On the other hand, when the restrained party skips the scheduled hearing, the proceeding proceeds uninterrupted, and the court automatically grants your request for a permanent order of protection.

Before the court imposes permanent orders, it must ensure that you served the abuser with the forms appropriately. The law requires that you notify the restrained person that you seek protective orders. You cannot serve the victimizer with the forms directly, but you can use a friend, relative, or lawyer to do the service. The person serving the papers must not be mentioned in the case and should be 18 or older. The copies of forms you share with the abuser must be readable and contain all the forms filed with the court, including the blank page containing the temporary orders. The copy you send to the victimizer is the D-120. 

You do not have to incur costs serving the abuser unless you enlist the services of professionals. When you use a professional, you must file D-140 as proof of service with the court. You will not incur any expenses when you use the sheriff’s office to serve the accused. 

The victimizer must know that you have petitioned for protection so they can also take measures to protect themselves. Also, the abuser is entitled to respond to the information you have included in the forms alleging abuse. Typically, you have five days before the hearing to inform the accused. Sometimes, you will have extra time to serve the accused, leaving them two to ten days to file an answer as indicated in the D-120. 

If you cannot serve the accused within the provided timeline, you should complete Form D-125 explaining to the court that you need extra time for the service and the reasons for not being able to serve the victimizer so far. If you request an extension to serve the defendant, the TRO will expire before the hearing, placing you at risk. Therefore, the court will consider extending the TRO if they give you time to notify the accused. 

Violation of An Order of Protection

When the police receive a copy of the permanent protection order, they take it seriously and must ensure it is enforced. If the victimizer violates the court conditions, there are serious criminal repercussions. Both the protected party and the restrained person must understand the conduct that amounts to a violation of a restraining order and the steps to take to prevent the violation or after a breach. 

The typical situations where a restrained party is deemed to have violated a DVRO include:

Unauthorized Contact

ROs bar the victimizer from contacting you. Therefore, if they do so by messaging you, calling, or interacting with you on social media, they breach the court orders, and you should report it.

Failure to Move Out of Shared Home

The consequences of DVROs on accused persons are devastating, especially when the court orders them to move out of the shared home. To the victimizer, it means staying away from the children and spending more to lease an apartment. As a result, many find it difficult to vacate the home, which amounts to a breach of DVRO, despite the circumstances.

Visiting Restricted Locations

When an order identifies particular places as restrained for the accused, they should not approach these areas because it increases the chances of contact with the victim. If you find your victimizer in these places, like a school, workplace, or a local bar that you frequent, you can report them for breach of DVRO. 

Harassment or Threats

You should report the restrained party for breach of protective orders when they engage in conduct that causes you to fear for your safety, like sending threats through a third party. Even though there is no direct contact, the behavior is a violation. 

Any behavior against the conditions mentioned in the DVRO amounts to a breach and should be reported. 

Criminal Charges for a Breach of Restraining Order

PEN 273.6 criminalizes the breach of the restraining order condition. The statute makes the violation a misdemeanor whose conviction attracts severe consequences. For the abuser to be convicted of breaching restraining orders, the prosecutor should demonstrate that:

● A court legally granted the orders to the protected party

● The injunction was a restraining order

● The abuser knew of the existence of the orders

● The abuser could adhere to the orders

● The restrained party deliberately or intentionally violated the court injunctions

When these elements are satisfied, and an abuser breaches court conditions, then a violation of PEN 273.6 is deemed to have happened, and the accused should face repercussions. All protective order conditions are equal, and none is more important than the other. Therefore, a violation of one of these conditions, however minor, should attract additional charges on top of those of domestic violence. After a violation, law enforcement considers several factors, including the accused person’s criminal history, before taking appropriate measures.

1. Legal Penalties

The penalties include jail incarceration for twelve months and a court monetary fine of no more than $1,000. 
When it is your second breach of the protective orders and your violation involves using physical force, the offense becomes a wobbler, giving prosecutors the discretion to file it as a felony or misdemeanor. A felony conviction attracts state prison incarceration for at most 36 months and a financial court fine of $10,000. 

2. Immigration Consequences

A protective order violation does not result in immigration repercussions, as there are no incidents categorized as aggravated felonies that would make the offense a moral turpitude crime and ensure eligibility for deportation or inadmissibility. 

3. Background Checks

A restraining order is a civil case and, therefore, does not appear in a victimizer’s criminal record during background checks. Nevertheless, a violation of the order is a crime, meaning that the arrest for the PEN 273.6 violation and subsequent conviction will appear on the victimizer’s criminal record during background checks, hurting their chances of employment, education, or leasing apartments. 

4. Firearm Rights

A guilty verdict for a felony PC 273.6 violation will affect the restrained party’s gun rights. They cannot own or possess a firearm. Nevertheless, misdemeanor violations do not result in the loss of gun rights. 

Consequences for Violation of a Protective Order by the Protected Party

The conditions of a protective order do not apply to you, the protected party. Therefore, even if you contact the abuser or engage in any other behavior prohibited in the DVRO, you will not be in any legal trouble. Only the restrained person will be arrested, charged, and possibly convicted for court order violation, leading to severe consequences.

With that said, it is not advisable to contact your abuser because you will be putting yourself at risk of harm, making the DVRO against the party non-beneficial. Also, the abuser could use this in future court cases to prove that you lied to obtain the restraining order and that you do not fear for your safety when around the victim. If the party proves you are no longer afraid of them, the court will cancel the order as it is useless. 

Find a Competent Los Angeles Restraining Order Lawyer Near Me

When you experience abuse within the household, you can seek legal recourse through a DVRO to protect yourself and others living in the home. The orders offer you safeguards to keep yourself and your loved ones safe. Therefore, do not hesitate to speak to an attorney when you feel threatened by an immediate family member or intimate partner. At Goldman Flores Restraining Order Law Firm, we understand the sensitivity of these cases and are willing to guide you through complex legal processes and keep you safe. Contact us at 310-643-8045 for a no-obligation consultation in California.