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Have You Been Served With A Restraining Order?

Posted by George L. Fernandez | Feb 18, 2021 | 0 Comments

In the California legal system, a restraining order prevents a specific person from harassing, abusing, stalking, or threatening another person. The party that is protected is known as the “protected person.” The other party (e.g., the abuser) is known as the “restrained person.” Restraining orders are also referred to as “protective orders.”

California law recognizes four types of protective orders. These include orders for:

California protective orders can remain in effect for up to five years. Some, though, will only be valid for months or even days. Examples of these types include:

  • temporary restraining orders, and
  • emergency protective orders.

A violation of a protective order is a crime per California Penal Code section 273.6 PC. The crime is charged as a misdemeanor (as opposed to a California felony or an infraction).

The offense is typically punishable by:

  • imprisonment in the county jail for up to one year, and/or
  • a maximum fine of $1,000.

Note that most restraining orders will prohibit a restrained party from:

A violation of these gun prohibitions is another crime per Penal Code 29825 PC.

In this article, our attorneys will answer 6 key questions:

person filling out restraining order form

Judges may issue terms to prevent a specific person from harassing, abusing, stalking, or threatening another person.

1. What is a restraining order?

It is a court order that is designed to protect a person from another named party. In general, California's Code of Civil Procedure says that it can protect against:

  • harassment,
  • physical abuse,
  • stalking, or
  • threats of violence.1

In addition, a protective order can include terms for:

  1. personal conduct orders – that stop the restrained party from committing certain acts (e.g., making phone calls, harassing, threatening, destroying personal property, and assaulting the protected party).
  2. stay-away orders – to keep the restrained party a certain distance away from the protected party, or his/her children, work, home, or some other specified place.
  3. Residence exclusion orders – that make the restrained party move out from where the protected party lives.2

2. Are there different kinds?

California law recognizes four types of protective orders that protect against:

  1. domestic violence,
  2. elder or dependent adult abuse,
  3. civil harassment, and
  4. workplace violence.

2.1. Domestic violence

A person can ask for a domestic violence protective order if:

  1. the restrained party has abused the person, and
  2. the person has a close relationship with the restrained party.3

A “close relationship” means that the two parties are:

  • married,
  • divorced,
  • separated,
  • domestic partners,
  • dating or used to date,
  • have a child together,
  • live together, or
  • are family members or in-laws.4

2.2. Elder or dependent adult abuse

A person can ask for an elder abuse or dependent abuse restraining order if:

  1. the person is 65 years of age or older (or is between 18 and 64 years of age with certain mental and physical disabilities), and
  2. the person is a victim of abuse, neglect, physical injury, or deprivation by a caregiver.5

2.3. Civil harassment

A person can ask for a civil harassment restraining order if:

  1. the person is being harassed, stalked, abused, or threatened by someone else, and
  2. the person is not in a close relationship with the restrained party (as with domestic violence restraining orders).6

2.4. Workplace violence

A person can ask for a workplace violence restraining order if:

  1. the person is an employer, and
  2. the person wishes to protect an employee from a credible threat of violence, immediate danger, or abuse at the workplace.7

Note that an employee cannot ask for this type of order. If he/she wishes to protect him or herself at work from a co-worker, the party has to ask for:

  • a civil harassment protective order, or
  • a domestic violence protective order (if the person is in a close relationship with the restrained party).

3. How long does a court order last?

The maximum length of a restraining order is five years from the court date or court hearing date upon which the order was issued.8

Note that a temporary restraining order, or “TRO,” (see Section 6), may last only a few months. A TRO is usually granted ex parte and prior to a permanent one.9

Further, an emergency protective order, or “EPO,” lasts up to five business days or seven calendar days.

Law enforcement and police officers can issue an EPO when responding to a domestic violence call. Law enforcement officers can issue the EPO if:

  1. they believe a person requires immediate protection from another person, and
  2. they contact a judge and get court approval for the EPO.10

Note that protected parties can always try to extend an order if:

  • they feel threatened by the restrained party, and
  • the threat comes when the order is about to expire.

4. What happens if a person violates the terms?

A violation of a protective order is a crime per California Penal Code 273.6 PC.

A prosecutor must prove the following to convict a person under this law:

  1. a court lawfully issued a protective order,11
  2. the defendant knew of it,
  3. the defendant had the ability to follow it, and
  4. the accused willfully violated it.12

A violation of Penal Code 273.6 is a misdemeanor in most cases.

The crime is punishable by:

  • imprisonment in the county jail for up to one year, and/or
  • a maximum fine of $1,000.13

Note though that this offense becomes a wobbler if:

  • it is a defendant's second conviction for violating a protective order, and
  • the violation involved an act of violence.14

A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony.

If charged as a felony, the offense is punishable by:

  • custody in state prison for up to three years, and/or
  • a maximum fine of $10,000.

5. Can a restrained party possess a firearm?

Most restraining orders prohibit a restrained person from owning or possessing a firearm for as long as it is in effect. They also generally prohibit a restrained person from purchasing a gun.

A person that violates these prohibitions can face criminal charges per Penal Code 29825 PC.

6. How does a person get a restraining order?

A person can go to the California courts (usually Superior Court) and completing the necessary forms. Alternatively, the person's family law or other attorney can complete the forms. It is deemed a type of self-help.

In the forms, the party seeking protection must describe why he/she is requesting protection from another party. Once complete, the party files the forms with the court clerk and is obligated to pay a filing fee (unless a fee waiver applies).

A judge then reviews the forms and decides whether or not to issue a TRO. If issued, the order will usually last for 21 days.15

Following the issuance of the TRO, the court will determine whether or not to make it permanent restraining order after hearing evidence on the matter. Prior to this hearing, notice of it must be given to the restrained party via a process server, and proof of service must be filed.16

If the evidence shows that the protected party warrants a protective order, the court issues one. It then remains in effect for five years.17

7. How do you challenge a restraining order?

The restrained party should hire a criminal defense attorney to challenge the order at the permanent restraining order hearing. These hearings typically occur about 21 days after the TRO was issued.

At this hearing, the defense attorney can argue to the judge why the restraining order is unnecessary. The attorney can also submit evidence and call witnesses. If the judge agrees with the defense attorney, the TRO will expire. And it will not be converted into a permanentrestraining order.

Note that if the judge does impose a permanent restraining order, the restrained party may still be able to appeal it to a higher court.

About the Author

George L. Fernandez

Passion. Experience. Diligence. Get in touch We at the Fernandez Law Group know that finding the right attorney to represent you is a choice not to be taken lightly. That's why we offer free consultations to discuss your legal problems, goals and objectives, Book an appointment ▸ FOUNDER & PR...

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