A court in California may impose a temporary restraining order to stop a specific person from stalking, harassing, or threatening another person. The protected party asks for the restraining order, while the restrained party is the defendant.
Therefore, the restrained individual must read, comprehend, and abide by the order's requirements. If the person in restraints breaks the rules of the order, they will suffer severe consequences. Therefore, you should seek legal counsel when someone obtains a temporary restraining order against you.
At Michele Ferroni Pasadena Criminal Attorney Law Firm, our attorneys are committed to defending your rights. With regard to restraining orders in California and the US, we have extensive experience. Therefore, feel free to contact our team of legal professionals if you need our legal services in Pasadena.
Understanding Temporary Restraining Order in California
A protection order is another name for a restraining order in legalese. Any person may file a temporary restraining order when they feel they have been abused or threatened. By guaranteeing that the defendant will not make any more threats or mistreat them, the injunction protects them. The orders are typically submitted by someone you have a close relationship with.
These individuals could be your ex-girlfriend, spouse, ex-spouse, or ex-boyfriend. Also, if they are over 12, your children may ask for the orders. Moreover, a third party could submit the request on your children's behalf. Once more, the people listed below can seek temporary restraining orders against you:
- Father or stepfather.
- The mother or the mother-in-law.
- A sibling or sister-in-law.
- Uncle in law.
- Wife's daughter.
Keep in mind that the in-laws must be connected to the current spouse. The law also permits the person who files the orders to protect other households or family members. As the defendant, you should retain legal representation for your case as soon as the court imposes a restraining order against you. The barrister will assist you in making the best decision for your situation.
The Legal Procedure in California for Obtaining a Temporary Restraining Order
For the court to grant you the temporary restraining order, you must follow precise procedural procedures. The court will provide you with the order once you complete the procedures. It is essential to consult your solicitor for legal counsel if you have yet to gain experience with the legal system.
The attorney provides essential information and guidance you require throughout the legal process. The actions you must take for the court to issue you the temporary restraining order are as follows:
Filling the Order
The first legal process to obtain the restraining order is filing a petition to the respective office. In the petition, you must explain to the court the reasons why you are filing the petition. Again, you must explain to the court why you think filing the petition is the best alternative for your case. for the process to be successful, ensure you involve your attorney in whatever you do.
The Restraining Order Hearing
After filing the petition, the court will hold a restraining order hearing. During the hearing, the court can either grant or deny you the temporary restraining order. Whether the judge will deny or give you the order, they must set the court hearing.
Serving the Respondent
According to California law, the court must serve the Respondent with the necessary paperwork at least five days before the court hearing. The defendant should receive the paperwork before the next court date. The document could either be mailed or hand-delivered to the defendant.
The law allows the restrained person to file a reply to the court after receiving the document and explain their side of the story. When this happens, the restrained and protected person will appear in court later.
At the court hearing, the petitioner can explain why the court should issue the temporary restraining order. Alternatively, the court will allow the Respondent to explain why the court should not give the restraining order. The judge will listen to the two sides to determine whether to issue the temporary restraining order or deny the order.
The court will highly favor the side which offers clear and credible evidence. Therefore, if you are the victim, working with a skilled attorney is the best thing you can do. The attorney will represent you at court and challenge the evidence provided by the petitioner.
If the petitioner fails to follow the court-ordered requirements when presenting the petition, the court can rule against them. When the protected person fails to appear in court as ordered, the restraining order expires on the court date. It means the court will not issue another restraining order.
Alternatively, when the restrained person fails to attend the scheduled court dates, the court will not allow him to explain his side of the story. The court might even issue an extended restraining order.
After the Court Hearing
When the court conducts the court hearing, the judge may grant the petitioner the temporary restraining order within five days. Also, the court may dismiss the petition. When the court denies the order, the petitioner has no room for a rehearing.
Since the court is usually serious after the hearing, you want to work closely with your criminal defense attorney. The attorney will do everything possible to ensure you win the case.
What Penalties Do You Face When You Violate a Temporary Restraining Order?
The penalties you face after violating a TRO vary based on the nature of the crime, among other factors. For example, you face harsh penalties if you have a prior criminal record. Also, the court considers the occurrence of the crime.
A First-Time Violation
When you violate a temporary restraining order for the first time, your attorney can challenge the court to grant you probation rather than a jail term. Remember, if the court grants you probation, you should not violate state laws. You will face additional penalties if you violate any laws while serving probation. Based on the facts surrounding the case, you might face the following penalties:
- Attend compulsory counseling.
- Restitution fee.
When you violate the conditions of your probation, you face the maximum jail sentence according to the law. The court will consider several factors to determine your punishment. For example, the court will consider your likelihood of violating the restraining order. The court also considers the security of the protected person. So, violation of the restraining order results in jail terms.
The court can charge you with either a felony or misdemeanor charge. You remain behind bars for two months when accused of a misdemeanor charge. Alternatively, you stay behind bars for four weeks when the petitioner suffers physical injuries.
When you violate temporary restraining orders within 12 months after the initial violation, you face either a felony or misdemeanor charge. You serve jail terms for six months when charged with a misdemeanor. Alternatively, when convicted of a felony, you remain behind bars for up to 36 months.
Other possible penalties include the loss of your right to possess a firearm. So, if you are restrained, the law prohibits you from having a gun. If you own a firearm, the law requires you to surrender it. So, where should you surrender the gun?
Make sure you return the firearm to the police. You can also sell the gun to a well-licensed gun dealer. You face additional charges if you fail to submit the firearm. The other penalties include 36-month jail terms.
How to Fight a Restraining Order
When you receive the order, ensure you respond to it. When you respond to the order, you will have an opportunity to explain your side of the story. You will also give reasonable reasons why you believe you never posed a threat to the alleged complainant. Before you respond to the restraining order, speak to your attorney.
The attorney will help you review the response and ensure the answer is in your interest. During the mandatory hearing, you want to speak the truth. Remember, the court will determine whether to grant or deny the order during the hearing. Always remain calm and do what your attorney tells you to do.
The Legal Defenses for Violating the Orders
When you break the orders, you first want to speak to your criminal defense attorney. The attorney will help you fight the charges. Based on your case, your attorney uses the following defenses:
No Intent to Violate the Order
Your criminal defense attorney can convince the court you violated the restraining order due to an accident, mental deficiency, or misunderstanding. For example, the court ordered you to avoid moving to certain places.
However, you accidentally find yourself in the same store, restaurant, or other places as the victim. So, in this case, your lawyer may argue you did not intend to violate the restraining order.
You Never Knew the Court Issued the Orders
You or your criminal defense attorney may argue that you never knew whether the court had issued the restraining orders. Therefore, you did not know whether you had a restraining order against you. The defense is more effective when the court does not serve you with the order. Also, the court might have mistakenly served the order to another person instead of serving you.
You Could not Physically Comply with the Order
You might argue that you had no alternative to complying with the law. For example, the law prevents you from accessing specific routes where the protected person resides. If you do not have any other options, this could be a defense to fight the charges. In this case, you did not willfully violate the law.
Do you know you can be falsely accused of violating the temporary restraining order? In this case, you can use the defense to fight the charges. Someone might falsely accuse you in an attempt at revenge or because of jealousy. Ensure you always have a competent lawyer to help you fight the charges. The attorney will help you skip the penalties for violating the order.
The Court Did not Lawfully Issue the Orders
According to California laws, the court must follow strict rules when issuing the order. So, if the court illegally issued the order, you cannot face conviction. Your attorney can gather evidence to help prove the evidence presented before the court by the petitioner is untrue or misleading.
Before you face conviction, the prosecutor must prove you had the intent to violate the order. Therefore, you cannot face conviction if the prosecutor fails to prove you violated the restraining order, you cannot face conviction.
So, the prosecutor must present adequate and reliable evidence before you face conviction. Your attorney should also challenge the credibility of the evidence presented by the court.
What a Temporary Restraining Order Cannot Do
A temporary restraining order comes with several limitations. For example, a restraining order cannot end a domestic partnership or marriage. You should note that the order is not a divorce. So, when the defendant wishes to divorce their partner, they must follow the legal steps to obtain a divorce.
Types of Temporary Restraining Orders in California
It is essential to understand the various forms of temporary restraining orders. The following are the common types of temporary restraining orders in California:
Workplace Temporary Restraining Order
The law allows the court to issue a temporary restraining order to protect employees from potential violence in California. Therefore, when the court issues the order, it ensures the restrained person does not abuse the victim. The criminal court may also require you to stay away from the victim. Again, the temporary restraining order prohibits the restrained person from possessing a firearm.
An employer can request a restraining order on behalf of their employees. The restraining order can also protect the employee's family and close relatives. The criminal court only grants the order when it is evident an employee is facing unlawful violence or threats of violence.
Unlike other types of temporary restraining orders, the employer only requests workplace violence restraining orders on behalf of his employees. So, the law prohibits the employee from requesting the workplace restraining order on their own. However, the employer must prove various factors for the court to grant the restraining order. These factors include:
- The employee must have experienced unlawful violence or threats of violence like battery, assault, or stalking.
- The threat of violence has been previously carried out at the workplace.
- The defendant has not committed a government-approved activity.
When the court issues the workplace restraining order, they may prohibit you from contacting the employee's family or the employee himself. So, when you find yourself in a similar situation, you want to seek legal help from your attorney.
Civil Harassment Restraining Order
The restraining order covers various activities like threats of abuse, stalking, sexual assault, or other forms of harassment. The law can hold you guilty of harassment when you harass someone with whom you have never had intimate or close relationships. For example, your neighbor, roommate, or friend can accuse you of harassment.
Civic harassment only occurs when the victim is not outlined in the domestic violence case. Therefore, when you subject your uncle, cousin, niece, or nephew to harassment, the law considers this to be civic harassment and not domestic violence.
Per the law, you are guilty of civic harassment when you convey a credible or actual threat to someone else. A real threat means you acted in such a manner that the victim feared for the safety of their lives. Also, the law can hold you guilty of civic harassment when threats are made over the phone. Other forms of civic harassment entail sending threatening and offensive emails.
A victim may file a civil harassment order when the defendant threatens or abuses someone unrelated. The defendant could have assaulted, severely harassed, or threatened the victim. Remember, civic harassment is inapplicable when the victim is your spouse. Also, the order will not work when the victim is someone you have ever dated.
Like other restraining orders, an order for civic harassment prohibits you from contacting the victim. Also, the order disallows you from visiting the protected person. Always work closely with your criminal defense attorney throughout the legal process. The attorney will help you whenever you require legal services.
Dependent Elder or Adult Abuse Temporary Restraining Order
California law prohibits you from subjecting a person older than 65 years to any form of abuse. Also, the law protects people ages 64 and older with any form of disability from abuse. As per the law, a victim becomes a dependent adult when they suffer a mental disability that prevents them from performing regular duties. The court can also issue a temporary restraining order against you when you subject an elder to:
- Financial abuse.
- Physical abuse.
- Abducting an elder.
- Deprive the alleged person their basic wants.
Other Acts that Might Attract Pain, Physical Harm, or Mental Anguish
The prosecutor must demonstrate that the victim is older than 65 before the court can impose a restraining order. The court may also impose the order when the victim is a dependent adult over 18 years old. You might not be allowed to be the primary caregiver if the court grants the restraining order.
If you live in the same house as the victim, the court may also order you to leave. You also forfeit your ability to own a firearm. After the court issues the order, you promptly seek legal counsel.
A Temporary Restraining Order's Effects
Your life may be negatively impacted if your husband or another individual requests a restraining order against you. The effects of a temporary restraining order on your life could be as follows:
- A court order prohibits you from visiting the victim, their spouse, kids, or other family members.
- The law may also oblige you to refrain from visiting your home, place of employment, or child's school.
- The law may order you to leave the victim's house if you share a residence with them.
- Your ability to possess or own a gun could be taken away. Also, you could not buy a firearm from a certified gun dealer in California.
- Your immigration status could be impacted as well. For instance, the law may stipulate that you be expelled from the US.
- You can be required to pay spousal support by the court.
- Even if you no longer live with the victim, the court may require you to pay a certain amount for specific bills.
- You may receive a release or property return order from the criminal court.
- You may need help modifying your insurance rules.
- If certain conditions are met, the victim may receive your right to a cell phone or account, and the court may order you to do so.
The CLETS records your information if the court imposes a restraining order against you. So, the information is accessible to all California police officers. Throughout the state, the temporary restraining order is effective. Therefore, you must respect the injunction's terms by merely leaving California.
It should be noted that a restraining order imposed against you in another state becomes enforceable once you reach California. The criminal court can implement an order made by a tribunal court anywhere in the US. Work constantly with your criminal defense lawyer to obtain the necessary legal assistance. Your lawyer is familiar with the state and federal laws governing restraining orders.
Find a Criminal Attorney Near Me
A temporary restraining order may prohibit you from engaging in various activities, particularly with your partner. You must see a criminal defense lawyer for legal advice before you do anything you might regret. At Michele Ferroni Pasadena Criminal Attorney Law Firm, we have assisted numerous clients.
To assist you in deciding what to do next, we begin by going over the circumstances underlying the granting of the temporary restraining order. We will stand up for you if the prosecutor accuses you of breaking the temporary restraining order. Hence, if you need our help in Pasadena, we are available to help. Call us at 626-628-0564 to speak with one of our knowledgeable attorneys immediately.