A restraining order or a protective order is a decree issued by a court of law to safeguard a person, business or other entity from possible harm in situations of domestic violence, harassment, stalking, or assault. People who seek restraining orders must have proper justification for seeking protection from the person they presume will cause harm. Restraining orders can be implemented temporarily, but when the situation is dire, a permanent restraining order (PRO) is deemed necessary. The San Diego Restraining Order Attorney has prepared this guide discussing instances that warrant a permanent restraining order and the process of getting one.
Domestic Violence in Marriages
Domestic violence impacts more than 10% of the population, which translates to roughly thirty-two (32) million people and counting, the CDC reports. Every year, one (1) to three (3) million women are battered by a spouse or a domestic partner. According to a poll done by an online polling company, 36% of respondents cited domestic violence in the form of physical and verbal abuse as the principal reason for seeking a divorce, and this figure was skewed toward women. 23% of men polled cited financial problems, 13% of respondents cited disagreements on how to raise kids, while another 12% cited boredom.
Seeing these statistics, it is no wonder that women, mostly, and men in married and other romantic partnerships seek restraining orders against their significant other when things turn sour. Apart from a restraining law, you can try the following measures:
- Emergency Protective Order – an EPO is requested on the victim's behest by a police officer by contacting a judge, who is available to grant EPOs round the clock. The law takes effect immediately and can go up to seven days.
- Criminal Protective Order – this order comes after reports of one or more incidents of domestic violence which prompts the district attorney to level criminal charges against the abuser. The order stays active for the duration of the trial, and if the accused is found guilty or they enter a guilty plea, the injunction remains in place for another three years.
The Difference Between a Permanent Restraining Order and a Temporary Restraining Order
A permanent restraining order – also legally known as an order of protection or harassment order – is a court-issued decree prohibiting the recipient from carrying out a stipulated action on the requester. As the name suggests, this restraining order lasts forever, thereby barring the potential aggressor from harming the victim.
In matrimonial practice, ex-husbands are the most frequent recipients of permanent restraining orders. These can be of two kinds or a combination of both:
- Refrain from – this sort of decree directs the offender not to threaten the victim by any means; electronically, mail correspondence, or by phoning them.
- Stay away – this sort of decree is more common after acrimonious separations and divorce, and it orders the offending spouse to vacate the marital home and stay away from their former partner and their family at home, work, or other places.
What is a Temporary Restraining Order?
A temporary restraining order (TRO) or an emergency protective order is meant to prohibit the offender from any physical contact with the victim, albeit for a limited amount of time. In California, restraining orders for domestic violence cases are issued under Family Code Section 6200, and they are readily available to the public. Therefore, if you feel that your life or your child's life is in danger, you can request one without going through a lawyer.
The judge can issue this order swiftly upon listening to the reasons for this request, and if they agree, the victim is protected immediately. TROs are typically granted ex parte, meaning the accused has no notice and they cannot defend themselves in court, which means the burden of proof for the petitioner is low.
A judge usually errs on the side of caution, but they must believe the allegations being made are more likely than not to be true. Moreover, the civil rights of the offender are infringed upon only for a short duration. TROs are only active until the day of hearing where the court determines if a permanent restraining order is justified, and this time, the respondent has the opportunity to be heard.
Once the TRO is issued, the court clerk will set a date – usually within twenty (20) days – for a hearing to determine if a permanent protective order is necessary. Both sides are furnished with copies of the protective order for their records, and this document plus the notice of subsequent hearing must be delivered to the respondent in person.
Can the County Sheriff Serve a Restraining Order?
The County Sheriff is legally obligated to serve family law restraining orders without charging a fee. You will need to present the RO to the local sheriff's office which is generally housed within the courthouse, and they will deliver them in person.
Restraining Orders in Family Court
In domestic violence cases, a family court does not require the respondent to have been apprehended or convicted of a crime for it to grant a temporary or permanent restraining order. Nonetheless, pursuing this line of defense may require a police report of the said incidence to act as evidence when issuing a protective order.
During the hearing to determine the viability of implementing a PRO, their presentation includes oral testimony and cross-examination of witnesses. There are also written declarations by the victim and the offender, and third parties, and then cross-examination of witnesses by legal counsel for both sides.
Such hearings could take anywhere between minutes and several days based on the facts presented, how many witnesses appear, and the amount of evidence. Whether complex or relatively simple, domestic violence and related cases where a PRO is on the table require the firm hand of an experienced permanent restraining order attorney.
Family Code 3044
Things can get messy once the permanent protective order is issued as this has a direct effect on child custody under Family Code 3044. This code states there is a "rebuttable presumption" that a perpetrator of domestic violence and related abuse cannot be granted child custody under California law, but this conjecture can be overturned by evidence.
In some cases, the court can modify custody arrangements if the offending party completes parenting classes, goes for counseling, attends anger management, to help them change behavior. Complying with the law does not automatically mean the abuser is reformed and they may carry on the abuse even from far. If you are a victim of domestic violence, Family Code 3044 permits you to record cellular and telephone calls with your estranged spouse to serve as evidence of their violation of the terms of the protective order.
What Does a Permanent Restraining Order Cover?
This decree prohibits the offender from coming into physical contact with the victim, and this extends to their children, grandchildren, and the larger family. Beyond covering blood relatives or people who married into the family, the decree also includes people residing in their household or anyone considered part of the family. The order also stipulates keeping a predetermined physical distance between the aggressor and the victim and family members throughout their life and of course no texting, sending correspondence, or calling.
Apart from preventing physical contact, a protective order also does the following:
Vacate premises – a judge may demand the abuser vacate the residence in which you and the abuser reside even if the title deed is in their name. In such a case, the court will ask them to remove personal items from home and grant you police protection during this contact.
Expenses and restitution - the court may demand the offender to award attorney fees and other costs that emanated from the abuse such as medical treatment, relocation expenses, and lost income. plus outstanding household bills like rent and utilities. Your abuser may also be asked to award restitution fees to you and other people who endured his abuse, e.g., another household member.
Attend counseling - the court may demand the offender attend a 52-week batterer intervention program, get a psychological evaluation from a qualified therapist, and attend Alcoholics Anonymous or drug rehabilitation center. The aim is to ensure the offender seeks help to modify his behavior.
Custody arrangements - usually, the court grants you care of your minor children, and if necessary, the judge will order the offender to pay child support and spousal support. Depending on the circumstances, the abuser may be granted visitation rights with the kids, whether supervised or not. In cases of spiteful divorces or separation where domestic abuse or other forms of violence occurred, you need to inform the judge, so they deny visitation rights.
Entry into CLETS - the abuser is entered into the California Law Enforcement Telecommunication System (CLETS) which is a computer network that links public safety agencies in the state to criminal histories, driver records, and other databases.
Additional protection - kicking out the abuser is not enough even after a disillusionment of marriage is granted as the person can still harass or attempt to harm you. As per California law, the judge can include other measures to the restraining order to ensure you and your family are safe provided you allow it.
Other requirements of the protective order include asking the accused to:
- Not alter insurance policies
- Release or return certain assets
- Not wantonly incur huge expenses or any action that would substantially affect the other person's property before a disillusionment of marriage
- Stay away from pets, e.g., the family dog
Income and Expense Declaration (IED)
If you are seeking child support from your separated partner whom you have accused of domestic violence, the court will ask you to provide an income and expense declaration. This four-page document outlines your income and expenditure plus your family's assets so the court can determine a fair amount for child support.
Our team at San Diego Restraining Order Attorney has litigated countless permanent restraining order cases in court and from our experience; child support is not generally atop the list of priorities. To mitigate such oversight, you need to include this request at the onset and attach an IED then affirmatively ask the court to deliberate on child support at this hearing. Our attorneys will follow this matter through and ensure your PRO comes together with a workable amount of child support, so you are not left scraping by.
What is not Covered by a Permanent Restraining Order?
PROs are very useful in getting your estranged spouse or other entity to give you space and more importantly, refrain from inflicting any bodily or emotional harm to you and your family. These benefits, notwithstanding, a protective order is limited in scope in the following ways:
- It cannot grant you a dissolution of marriage so you will have to pursue this aim in divorce court and familiarize yourself with California's regulations on divorce
- It cannot establish parentage of your minors with the restrained person if you are not married or in a domestic partnership that is registered with the California Secretary of State. The latter would only happen if you and the estranged partner reach an agreement to this end and allow the court to enter a judgment about parentage. In this scenario, you would use a document "Agreement and Judgment of Parentage" and fill out Form DV-180.
What Happens after the Court Hearing?
Once the permanent restraining order is issued, the court will present both parties, you and the accused, with copies for reference purposes and if there are any queries, this would an opportune time to ask.
Bring your PRO with you everywhere and if your restrained partner breaches any of the terms of this decree, call the authorities immediately. The police will detain the offender as agreed upon by California's law. More so, if the situation warrants it, you have the right to police protection, especially when you are getting veiled or explicit threats.
If the infringement of PRO entails criminal activity such as trespassing, stalking you, or any form of harassment, law enforcement must sign a criminal complaint about contempt of the court order. Should you misplace the PRO or it becomes destroyed, you can retrieve another copy from the court. Bringing it with you always helps the police to understand your situation.
How Does a Permanent Restraining Order Affect the Recipient?
Seeing the circumstances that warrant a judge to issue this decree, having a permanent restraining order on the record is damaging. Apart from the legal fees that come with such legal entanglements, the recipient will find it immensely challenging to land employment. Hiring agencies have access to the National Crime Information Center registry, which catalogs offenders of all sorts of crime, including those with restraining orders.
Prospective employers usually avoid people who have been considered a significant threat to someone else's safety so much so that they are asked to stay away from them. One cannot work for the government in any capacity and occupations like nursing, psychotherapy, pharmacy, or teaching.
Also, someone with a permanent restraining order is not eligible to adopt children or foster any minor even if they clean up their act after the fact. More so, if the person is already employed, they are likely to be expelled from their post – especially in schools – and they cannot run for elected office. Other restrictions that come with a permanent restraining decree include:
- Being denied housing
- Cannot own a firearm
- Banned from game hunting
- Denied right to stay in the country
Can I Change a Permanent Restraining Order?
An order of protection must clearly outline what the victim is being protected from down to the most delicate details. Nevertheless, the petitioner can put in a request to have this decree amended to include more provisions, and the attending judge will review and rule for or against this request. For instance, if the restraining order covers minors, the judge will be inclined to rule in the best interest of the child.
The offender can also request for a modification of the protective order subject to a judge reviewing the request based on the evidence presented before the court. If there is sufficient evidence, the judge can modify the order without exposing the victim to any danger and for instance, allowing dad access to kids through supervised visitation.
It is important to note, sometimes the permanency of PROs is upon the judge's discretion and usually lasts the duration granted by a court. Therefore, a permanent restraining order doesn't always cover the petitioner's lifespan, and this order can be lifted once the abuser has completed rehabilitation classes. When there is sufficient evidence of change of behavior, the judge can lift the PRO but only with consent from you and your family.
Find a San Diego Restraining Order Attorney Near Me
If you are involved in a domestic dispute that escalates to violence, getting a protective order against your partner is the most reasonable course of action. This order removes the person from your surroundings and keeps them from contacting you in any way, without police or legal counsel present, as you pursue a PRO. The San Diego Restraining Order Attorney helps clients like you get permanent restraining orders against their partners, so they are out of harm's way, and we will ensure that you get the necessary financial support and restitution. Call us today at 619-728-6293 for a free consultation so you can remove the danger from you and your family's life as you figure out the next course of action, be it separation or dissolving the marriage or domestic partnership.
If you are looking for a restraining order attorney in Los Angeles we recommend this law firm: Los Angeles Restraining Order Lawyer
