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.
On its own, divorce is not an enjoyable process. However, when abuse is involved, fear and anxiety can add a new level of stress to an already tense situation. Sometimes the abuse has been ongoing, other times, it might be sparked by the divorce process, itself. Either way, it’s never okay, and if you or a loved one are afraid of retaliation during divorce proceedings, know that there are options available to help keep you safe.
One common restraining order involved with divorce is a Domestic Violence Restraining Order, which offers protection against someone you are or have been in a relationship with, specifically when domestic violence is involved. However, protective orders are not restricted to violent situations, and are also available to individuals who do not have a history of abuse in the relationship.
Here’s a breakdown of these protective measures, and what you need to know about filing a restraining order in San Joaquin County.
Domestic Violence Restraining Order in San Joaquin County
A Domestic Violence Restraining Order (or, DVRO), is directed specifically at situations where abuse is being delivered by someone you are intimately involved with. This includes a spouse, domestic partner, or someone you lived with, but it also extends to dating relationships. Indeed, living with the person is not a requirement for a DVRO in California. The abuse need only come from a person you are—or were—intimately involved with, and is not limited to just physical harm.
Under California law, abuse is classified as:
Hurting or trying to hurt someone (either intentionally or recklessly);
Any form of sexual assault;
Causing fear of physical retribution (directed at an individual, personally, or toward a loved one);
Actions that prevent an individual from coming and going freely; and,
Issuing threats, which can be verbal, but can also come in the form of harassing, stalking, and the destruction of property.
This includes all forms of emotional and psychological abuse, even in the absence of physical harm. Hence, even if you have not been physically molested, you might still be able to file a Domestic Violence Restraining Order against your tormentor.
How to File a Domestic Violence Restraining Order
Individuals wishing to file a Domestic Violence Restraining Order in San Joaquin County can find the necessary forms either online or at the Civic Center Courthouse. There is no fee to file a DVRO, and an interpreter will be provided if needed. If the forms are filed before 10 a.m., the restraining order will be available between 2:30-4:00 p.m. the same day. If filed after 10 a.m., the order will be ready between 8:30 a.m. and 2 p.m. the following day.
Types of Restraining Orders in San Joaquin County
Generally speaking, DVROs are issued either as an Emergency Protective Order (EPO), or as a Temporary Restraining Order (TRO). Permanent Restraining Orders are less common, but are also available, especially for individuals caught in cycles of long-term abuse. However, even if domestic violence is not involved in your divorce, you can still get a restraining order against your former spouse, and there is a myriad of reasons why you might want to do so.
Below, are the three main types of restraining orders issued during divorce proceedings, and what situations they usually apply to.
Emergency Protective Order (EPO)
Emergency Protective Orders are handled exclusively by law enforcement and are typically requested when a police officer responds to a call of domestic violence. If the threat of harm is imminent, or the victim is unable to file for a restraining order on their own, the officer can call an EPO in to a judge at any time of day or night. The EPO will then take immediate effect and will last seven calendar days, or five business days (whichever is shorter). Civilians cannot file for emergency orders; however similar protections can be found by filing for a Temporary Restraining Order.
Temporary Restraining Order (TRO)
A Temporary Restraining Order is an action that will restrain an individual’s abusive conduct for a limited period of time. While similar to Emergency Protective Orders, TROs do not require a police officer’s request, and also last a little bit longer. Generally, the life of a TRO is about three weeks (20-25 days), after which the petitioner will be required to attend a full, evidentiary hearing. At these hearings, both parties will have the chance to present evidence in favor or against the restraining order.
Ex Parte Hearing
Sometimes, however, the threat is too great to wait for the traditional filing period. In these situations, an individual may request an ex parte hearing, or, in other words, an emergency meeting with the judge. These hearings occur within twenty-four hours of the request, and require the individual to show proof that immediate action is necessary to prevent imminent and irreparable damage to them. Once granted, the filer need only provide informal notice to the opposing party to make the order effective.
TROs and Divorce
Aside from emergency situations, Temporary Restraining Orders are also quite common in divorce cases. Often, they are filed at the onset of a case and will last for the duration of the proceedings. A TRO can be filed even without a history of abuse and can apply to contact as well as to conduct, making it especially useful for the spouse wary of retaliation. For example, a TRO can prevent a vindictive partner from doing something like liquidating assets, emptying bank accounts, or even removing children to another location without permission.
After the divorce is final, individuals who still need continued protection can file for a Permanent Restraining Order.
Permanent Restraining Orders
The final and most long-lasting type of protective measure is a Permanent Restraining Order. In order to obtain one, an individual must show that the fear (or danger) is ongoing, and there is no reason to think it will end. It’s a highly subjective and difficult to standard to satisfy, and are usually issued to protect victims with a history of long-term abuse.
Restraining Order Attorneys in San Joaquin County
In addition to DVROs and the various types of orders found in family law, there are also a number of protective orders available to shield victims in other situations. Understanding the nuances of each category and how to file can be overwhelming, especially when you add the pressure of unseen threats and danger that usually accompany the need for such tactics. If you are experiencing these types of threats—in or outside of a divorce—we may be able to help. Contact our office today at (209) 989-4425, or get in touch online to schedule a consultation, and together we can discuss what protective order might be best for your individual situation.
