What is a Restraining Order?
A restraining order places a legal barricade, so to speak, between the protected parties and the accused. If granted, a restraining order makes it unlawful for the restrained party to have any contact with the protected party. In most cases, these orders occur following a domestic violence issue.
There are four different types of restraining orders, discussed in detail below, including domestic violence restraining orders, elder abuse restraining orders, civil harassment restraining orders, and workplace violence restraining orders. Depending on the situation, a restraining order can last for anywhere from days up to several years. If you have been served with notice of a restraining order hearing, call San Diego restraining order attorney Vikas Bajaj today for a free consultation.
Types of Restraining Orders
In the state of California there are four types of restraining orders available.
- Domestic Violence Restraining Order is the most commonly issued type. It covers those who have a close relationship such as a marriage, separation, domestic partnership, dating or used to date, share children, live together or have lived together in the past as more than roommates, or have a close familial relationship such as parent, child, grandmother, grandfather, sister or brother. If you have been served with a DVRO, you respond by using form DV-120. Beyond being the most common, these orders can be the most severe as they impact where you can live and your ability to see your family. Speak to San Diego restraining order lawyer Vikas Bajaj today to find out how we can help.
- An Elder or Dependent Adult Abuse Restraining Order covers the accuser who is 65 or older or one who is between the ages of 18 and 64 with specific mental or physical disabilities which prohibit normal activities or being able to protect oneself. The person asking for a restraining order must have been a victim of neglect, abandonment, financial abuse, physical abuse, any treatment which has hurt the victim mentally or physically, or any deprivation by a caregiver of the basic necessities of life. You can find the response form, EA-120, by click here.
- A Civil Harassment Restraining Order can be requested by a person who is being harassed, threatened, abused or stalked by someone who is not as close as is required under a Domestic Violence Restraining Order. Roommates, neighbors, or more distant family members such as uncles, aunts, nephews, nieces and cousins fall under this type of protective order. To respond you use the CH-120 form.
- An employer can request a Workplace Violence Restraining Order on an employee’s behalf who has suffered credible threats of violence, serious harassment, stalking or violence while at work. An employee is not allowed to ask for a Workplace Violence Restraining Order on their own, rather would ask the court for a Domestic Violence Restraining Order or a Civil Harassment Restraining Order. One responds by using the WV-120 form.
Consequences of Restraining Order
The issue of a permanent restraining order can have a significant impact on your personal, private and public activities.
- Loss of Gun Rights: If you have a permanent restraining order against you, you may find your gun rights as well as the ability to obtain a state licensure are adversely affected (Penal Code § 273.6).
- Loss of Employment and Residential Opportunities: Any potential employer or landlord who runs a background check on you will pull up the restraining order. This means your employment opportunities, and even where you live, could be adversely affected as well.
- Immigration Consequences: Should you be in the process of obtaining legal immigration status, a restraining order can prevent you from doing so. If you conduct business across the border, as many San Diego residents do, then it could impact your livelihood by restricting your ability to travel.
- Child Custody: A restraining order may impact your ability to have retain custody of your children.
Additionally, the Sheriff’s Department will include your name in a public database that lists San Diego residents under a restraining order. Given the severity, it’s critical you speak to a qualified San Diego restraining order attorney as soon as possible.
How Long Do Restraining Orders Last?
There are specific lengths of time a restraining order can last, ranging from a few days to years. The level of protection is dependent on the specific facts surrounding the case and will determine the length of the order.
Emergency Protective Order
An Emergency Protective Order goes into effect immediately and can last as long as seven days. It may be issued in the event a person is judged to be in immediate danger. For further protection, a temporary or permanent restraining order must be requested.
Temporary Restraining Order
A Temporary Restraining Order (“TRO”) generally lasts between two and three weeks. It is meant to protect a person until the case can go before a judge. The accused will be allowed to tell his or her side of the issue during the hearing, however the initial TRO is usually issued solely on the word of the person asking for protection, along with some type of reasonable proof of imminent danger or harm. Conduct which warrants a TRO must have been significant enough that it would cause a “reasonable” person emotional distress.
Permanent Restraining Order
Finally, after a hearing has taken place and a San Diego judge has determined the accuser requires extended protection, a Permanent Restraining Order may be issued. At the hearing to determine whether a PRO is warranted, both parties can tell their side of the story. If no specific termination date is given, the Permanent Restraining Order will last three years, however the order can last as long as five years. When the Permanent Restraining Order is three months from expiration, the protected person may request an extension or that the order be made permanent.
What a Restraining Order Does
The goal of a restraining order is to prevent the alleged abuser from having any contact with the alleged victim. “Contact” can include personal conduct such as:
- sending messages (text or e-mail),
- destroying personal property,
- sexually assaulting,
- disturbing the peace of the protected person or persons,
- striking, or
The order may include “stay-away” orders which mandate the named person must stay a specific distance from the accuser, usually 50-300 yards.
This includes where the protected person lives, works, goes to school, his or her vehicle, and other usual places the protected person frequently goes. If the protected person’s children are included in the restraining order, then the children’s child care or school is also included.
It may also include a move-out order which mandates the restrained person must move out of the home where the protected person currently lives, taking only personal belongings and clothing until the court hearing.
The Restraining Order Hearing
Prior to the restraining order hearing, you must be personally served with notice. A TRO will not be legally enforceable unless and until the person the order is issued against has received notice. A Permanent Restraining Order will not be issued until the person the order is against has been served with a copy of each document filed in the court, and has been notified of the upcoming hearing.
The Permanent Restraining Order hearing involves the following:
- The Petitioner (person seeking a restraining order) will present evidence as to why the request should be granted. The petitioner will have the opportunity to call witnesses and submit any other info that is relevant and admissible.
- The Respondent (person being restrained) will then have an opportunity to present evidence on his or her behalf as to why the request should be denied.
Both parties will be allowed to cross-examine their respective witnesses. Afterward, the judge will make a decision as to whether the requested order is warranted.
What if the Restraining Order Was Based on Untrue Statements?
If a restraining order has been issued against you based on untrue statements, having a knowledgeable attorney by your side is crucial in order to maintain your current way of life. In the interim, while your attorney is sorting out the facts and determining the best way to proceed on your behalf, it is imperative you abide by all restrictions spelled out in the restraining order.
You will be allowed to tell your side before a judge at the TRO hearing—which you must attend, or a permanent order could be granted by default. A response will be filed by your criminal defense attorney, challenging each allegation.
The issuance of a Permanent Restraining Order requires clear and convincing evidence from your accuser. Your attorney will have the opportunity at this hearing to aggressively rebut the case presented by your accuser, the petitioner. Don’t assume a judge will know you are telling the truth at your hearing—increase your chances for a better outcome substantially by speaking to an experienced San Diego restraining order attorney.
Consequences of a Violating a Restraining Order
Restraining order violations falls under California Penal Code §273.6. The penalties include a fine of to $1,000 or up to one year imprisonment in a county jail. If the violation resulted in physical injuries to the protected party, the punishment increases significantly.
Get Help Today From An Experienced San Diego Restraining Order Attorney
Call the Law Office of Vikas Bajaj, APC today to discuss your situation. San Diego restraining order lawyer Vikas Bajaj is experienced in dealing with these matters and will his experience to work for you. We offer a free consultation and are available 24/7 to take your call.