Filing & Defending Restraining Orders Throughout Southern California
Restraining orders can arise in both the criminal and civil law systems. Allegations of violence often give rise to restraining orders. When an individual is arrested for an act of Domestic Violence they will also be facing a criminal restraining order. Separate and apart from a restraining order in the criminal case our office represents individuals seeking to either file or defend against a civil restraining order which are brought in the family law courts of California. Restraining orders can cause the restrained person significant damage including job loss or employment difficulties and can also set one up for future criminal charges.
The Law Office of Brian Michaels both files and defends Restraining Orders throughout Southern California. Many forms of these orders come not out of the Criminal Court, but out of Family Courts and do not always involve family members.
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Emergency Protective Order
If police respond to a domestic violence call and believe that there is an immediate risk that a person will batter someone in the home, they will contact a judge and ask her to authorize an emergency protective order. The judge may issue the order if she finds, based on what police tell her, that there is an immediate risk of abuse and that a protective order is necessary to prevent that outcome.
If issued, the order will, among other things, prohibit the restrained person from contacting, harassing, or threatening the protected person; determine who has temporary care and control of the children and pets; exclude the restrained person from the home; and prohibit the restrained person from possessing a firearm or ammunition. The emergency protective order will automatically expire after a week at which point the victim should seek a more permanent order in the Family Court.
Domestic Violence (Temporary) Restraining Order
A person can apply for a temporary restraining order at any time--no police involvement is necessary. To do so, the person must petition a family law court and persuade the judge that she is a victim of domestic violence. The family law judge must decide--based solely on the uncontested allegations of the alleged victim--whether the person has suffered domestic violence at the hands of the person she is accusing.
If granted, this order grants the same protections as the emergency protective order. It can also include other restrictions that affect shared property, such as prohibiting the restrained person from modifying any insurance policies and determining who gets to use certain property and to what extent. If the judge is persuaded, she will issue a temporary restraining order that will remain in effect until a future hearing date, which is typically scheduled three weeks later. These orders however are not enforceable unless they are personally served against the party who is sought to be restrained
Domestic Violence Restraining Order (After Hearing)
About three weeks after a temporary restraining order is issued, a family law judge will hold a hearing to determine whether to extend the order further or allow it to expire that day. The judge's primary concern is the safety of the person requesting the order and the safety of the parties' children. The judge will be more likely to extend the order if she is persuaded that not doing so will put their safety at risk.
At the hearing, the restrained person will have an opportunity to present evidence and explain why he is not a threat to the safety of his children or the person requesting the order. If granted, all of the conditions in the temporary restraining order (for instance, a stay away order, home exclusion, firearm restriction) will remain intact. Moreover, if the judge decides to extend the order, she can also impose additional conditions, such as order the restrained person to pay child/spousal support, to pay restitution for the protected party's loss of earnings and out-of-pocket expenses, to participate in a 52-week batterer's program, and to pay for the protected party's attorney's fees.
Once the temporary order is extended, it can last three to five years. The protected party can seek to extend the restraining order for an additional five years or even permanently. The duration of the restraining order can be shortened only by court order at a hearing in which the protected person is given notice and an opportunity to object. These kinds of orders are known as Permanent Restraining Orders and can last up to 5 years. Violating one of these orders can result in a year in jail or worse.
Criminal Protective Order
Domestic violence restraining orders are issued in family court at the request of an alleged victim. A criminal protective order is issued by a criminal court judge at any time during the criminal court proceedings (for instance, at the arraignment or at any other pretrial hearing before an accused person is convicted). To issue a criminal protective order, a judge must have reason to believe that such an order is necessary to prevent a defendant, or someone acting on his behalf, from harming, intimidating, or dissuading a witness or alleged victim.
Once issued, the order can prohibit the defendant from doing, among other things, preventing or dissuading the alleged victim or any witness from testifying, calling the police, or cooperating with the prosecution; contacting, harassing, or threatening any person protected by the order; taking, harming, or giving away any family pets. The order will last for the duration of the criminal proceedings, meaning that the order will remain in effect until the case is dismissed or the restrained person is convicted (for instance, if he pleads guilty or is found guilty by a jury) or acquitted (meaning that a jury unanimously finds him not guilty).
Criminal Protective Order (After plea or Trial)
Once a person is convicted of a crime involving domestic violence, the judge must, at the time of sentencing, consider whether to issue a protective order that prohibits the restrained person from having any contact with the victim. In making this determination, the judge must look at the severity of the abuse in the case, the probability of abuse in the future, and the safety of the victim and her immediate family.
If issued, the order will compel the restrained person to stay away from the victim. Additionally, if the restrained person is granted probation, the order can also prohibit him from threatening, stalking, sexually abusing, harassing, or inflicting violence upon the victim; exclude the restrained person from the residence; and impose additional stay-away conditions (such as to stay away from pets or additional locations like the victim's church or workplace). A post-conviction protective order can last anywhere from three to ten years.
Get the Representation You Need for Restraining Order-Related Issues
If you were properly served a restraining order it is critical you abide by it as a violation can result in criminal charges for violating Penal Code Section 273.6 of you can be found in Criminal Contempt and sent to jail. Even unwanted Facebook likes can be cause for a violation of a restraining order. If you are served with a Restraining Order or seek to file one for Protection Attorney Michaels handles all kinds.
Schedule your FREE initial consultation today with our Los Angeles restraining order lawyer.