A California protective order (sometimes called a “restraining order”) is a legal document that can be used to help protect victims from harassment or abuse from a specific individual.
This order is one of the most helpful ways of protecting victims of domestic violence from future harm. Unfortunately, it can also be misused, and employed as a tool during divorce, in order to gain the upper hand in a custody battle.
If you feel that you’ve been unfairly issued with a protection order, try not to panic. As an accused, you have rights too, and will have the opportunity to present your side of the story to a judge, before the terms become permanent.
To help you prepare for your hearing, here’s what you need to know about protective orders in California, and what the Maples team can do to help you navigate these serious allegations.
What is a Protective Order?
First off, what is a protective order, exactly, and how does it work in California?
A protective order is a legal document that is designed to protect a specific individual (or individuals) from specific types of harm, from a specific individual. These orders are signed by a judge, and can be used to either prevent or require certain behavior from a specific individual. (For example, to prevent a perpetrator from coming within 100 yards of a certain person, or require them to move out of the family home.)
Obviously, this document isn’t exactly body armor—and thus, cannot physically shield a person from future domestic violence. However, what a protective order does do, is attach some fairly hefty legal and financial consequences for any violation.
This then, has the dual effect of both deterring would-be abusers from committing future crimes, and enabling law enforcement to take swift, harsh action in the immediate aftermath, if one does take place.
Not the Same Thing as a Civil Restraining Order
While similar in function and name, we should point out that a protective order is not technically the same thing as a restraining order.
This is confusing, we know (especially since Hollywood is always calling it the wrong thing), however, a criminal protective order and civil restraining order are two different things.
Unlike a protective order—which is used exclusively to protect individuals from harassment and violent crimes—civil restraining orders have a much broader scope. In fact, these orders are often issued to keep spouses from retaliating against each other during divorce, and to maintain the status quo until a case can be settled.
In this context, a restraining order might be used to protect assets, limit account withdrawals, prohibit the sale of the family home, keep a parent from moving their child out of state, address debt, require spousal support, or even enforce a temporary child custody arrangement.
Types of Protective Order in California
In California, there are actually three different types of protective order: emergency, temporary, and permanent. Each of these is a kind of “level,” and will lead directly into the next one, if not taken seriously.
Here’s a closer look.
1. Emergency Protective Order
Judges and law enforcement are the only ones who can request an EPO—victims, themselves, cannot. When issued, these orders become effective, immediately, and are set to last seven days.
Emergency protective orders are typically issued in the immediate aftermath of an altercation; typically when it’s obvious that some kind of physical harm, sexual assault, or abuse has taken place, and that more harm could follow.
This type of order acts like a Band-Aid; it offers swift, immediate protection to potential victims, and gives them a week to file a temporary protective order on their own behalf, if more time is needed.
2. Temporary Protective Order
A temporary protective order is similar to an emergency protective order, in that a judge can issue one, without an accused being present.
However, victims must request this order themselves, and it will only be granted if they can convince a judge that an immediate threat actually exists. Furthermore, the order will only last between twenty and twenty-five days, before it expires.
If an accuser wants the protections to last longer, they must schedule a hearing for a permanent protective order (usually within that twenty to twenty-five day period), and notify the accused via proper service.
3. Permanent Protective Order
A permanent protective order can only be issued after a formal hearing has taken place—a hearing that, by law, an accused has the right to be present at. Notification of this hearing must be issued via proper service.
At this hearing, both sides will have the opportunity to present evidence, and to tell their side of the story. After reviewing all of the information, a judge will decide whether or not to issue a permanent protection order, or to dismiss the request, entirely.
While its name may imply “forever,” permanent orders actually only last five years, and must be renewed at another hearing, if longer protection is needed.
Someone Filed a Protection Order Against Me… Now What?
Allegations of harm and abuse are incredibly serious, and are not taken lightly by California courts. If ignored, a temporary protective order can get serious, fast, quickly morphing into a permanent protection order that can have a lasting impact on your life. Influencing things like child custody, your divorce, and even your permanent criminal record.
Hence, if someone has filed a protection order against you, don’t wait. Act immediately, by following these four steps:
Comply With Your Order. Whether or not you think you’re innocent, you will gain nothing by ignoring a protective order. Remember, compliance is not an indication of guilt, and you will have the opportunity to set the record straight at your hearing.
Hire Representation. Domestic violence allegations are nothing to sneeze about. If you’ve been served with a protective order, you’ll want an experienced attorney fighting for your rights during this process—especially if the person blaming you has already done the same.
Surrender All Firearms. In California, you are not allowed to own or possess guns, firearms, or even ammunition, when there is an active protective order against you. If you already have one, then you’ll need to sell it, store it with a licensed dealer, or turn it over to law enforcement, immediately.
Attend Your Hearing. It’s vitally important that you attend your hearing, and prepare for it with the utmost gravitas. Failure to attend won’t stop the proceedings, if you’ve been properly served. Instead, your judge will simply enter a default judgment against you, in your absence—an outcome that’s far worse than the effort it will take to properly defend yourself.
Do You Need Help Responding to a California Protective Order?
Protective orders are a serious matter, and should not be taken lightly, even if you believe you are innocent. An experienced attorney can help you focus your efforts where you need to, collect the evidence you need, and fight tirelessly for your rights.
If someone has filed a protection order against you—and you have questions about what to do next—we want to hear from you. Call the Maples Family Law team today, at (209) 910-9865, or contact us online, and let us help fight for your rights in these important matters.
The only thing more stressful than a divorce is having to go back to court, to enforce the divorce order that your judge already handed down. (As if the first time wasn’t enough, right?)
Unfortunately, that’s exactly what some people have to do.
Whether you like them or not, the terms of your divorce are not optional. California courts will expect you to obey them, and failure to do so can result in some fairly significant financial and/or legal consequences—including a charge for contempt of court.
Here’s what you need to know about contempt of court in California, and what the Maples team can do to help you navigate these serious claims.
Contempt of Court: 101
Contempt of court occurs when someone willfully or intentionally refuses to comply with a court order. This is a criminal charge (meaning that it isn’t handled by civil courts) which can result in steep fines, and—yes—even jail time.
Before you run out and immediately call foul on your ex for screwing something up, though, take a step back and consider whether this hefty charge is really necessary.
In our experience, most non-compliance comes down to a simple misunderstanding—maybe the order was vague, or a certain requirement got overlooked. These errors can usually be figured out without going to court, and certainly without needing to charge someone with contempt.
For contempt to be appropriate in divorce, the level of defiance has to be fairly significant, and/or the subject matter quite serious. (Meaning that a dispute over pet custody or grandma’s heirloom silver likely won’t cut it.)
Examples of situations where contempt might be appropriate include:
If one of these scenarios sounds familiar to you, then you may be able to file for contempt, so long as you meet the elements.
Elements of Contempt of Court
A charge of contempt commences when someone files an “Affidavit for Contempt.” However, you won’t get very far in this process unless you also have all of the right elements.
In California, these elements require you to provide proof that:
There was a valid court order in place. In addition, the terms must be clear; California courts are unlikely to punish someone over a vague or poorly worded order.
The accused knew about the court order. A quick text won’t cut it here; instead, the accused must have received notice via proper service.
The accused willfully violated the court order. This element can be a bit tricky, but usually requires some sort of purposeful refusal to comply—meaning an accidental oversight or misunderstanding won’t be enough. Here, the accused knew about the obligation, and still refused to comply.
A claim of contempt that can’t check all these boxes is unlikely to be successful in California court.
Rights of the Accused
To protect the rights of the accused, California legislatures have outlined certain due process rights for those who have been charged with contempt.
In layman’s terms, “due process” is basically just fancy legal jargon that refers to a system of rules and rights that protect people who have been charged with a crime. Due process ensures that whatever legal process follows is done correctly, and that someone isn’t unfairly charged or convicted.
Those who are charged with contempt of court in California, also enjoy these due process protections. Some of which include:
The right to be notified of the charges against you. This notice must have been done via proper service; a text or casual email won’t cut it.
The right to have representation. Every person has the right to an attorney. If an accused can’t afford one, then the state is obligated to provide one for you.
The right to a hearing. California residents have the right to be present when charges are brought against them. At this time, they have the right to present their defense, and to cross examine any witnesses brought against them.
The right to a jury trial. Since contempt is a criminal charge, in some situations, an accused may even have the right to a trial by jury (although, the law is a little vague on exactly when this would be appropriate).
The right to have the charges dismissed, IF their accuser can’t meet their burden of proof.
Consequences of Contempt of Court
If a California judge upholds a charge of contempt, then the penalties will vary, depending on what terms of the divorce order were violated. However, some of these punishments might include:
A $1,000 fine;
Mandatory community service;
The seizure of assets;
Suspension of licenses;
Liens on property; and even,
Five days of jail time for each instance of contempt.
These are just some of the potential consequences for first time offenses. In California, the punishments for contempt of court will increase in severity, if convicted again. And even more for third time convictions, so it’s not something you want to mess around with.
At the end of the day, however, the ultimate goal of contempt is to pressure another party into complying with a valid court order, and you don’t always have to use contempt to do that.
To find out more about enforcing divorce orders in California, speak to your family law attorney today about your options.
Do You Have More Questions About Contempt of Court in California?
While contempt of court is a less commonly used method of enforcement, it’s still a possibility—especially in cases of extreme and repeated instances of noncompliance. And whether you need help fighting this charge, or pursuing it, you’ll need an experienced family law attorney on your side.
If you have more questions about contempt of court in California, and how it will work in your situation, we want to hear from you. Call Maples Family Law today at (209) 989-4425, or get in touch online, and let us help you navigate this important issue.
