If a person is violent towards you or is threatening you with abuse, harassment, or violence, the ideal way to get them to stop is obtaining a restraining order against them. It may be a piece of paper, but it’s a legal protection that will keep the person harassing you or your family away.
While they do provide necessary protection for the victimized persons, restraining orders may also have a distressing effect on you if you have been falsely accused and you do not deserve to be restrained.
At San Diego Restraining Order Attorney, we have experience helping San Diego clients on either side of this matter. Whether you want to file a restraining order for yourself, your family’s protection, or if you want to defend yourself against false accusations, our attorneys will help you understand what options you have and will defend your rights according to California law. This article focuses on temporary restraining orders and everything about them.
What is a Restraining Order?
A TRO is an order that a court issues which prevents an individual from threatening, harassing, physically abusing, or stalking another individual. Restraining orders are fact specific, and they forbid the person named therein from doing particular actions. There are three types of restraining orders in California, issued depending on the level of protection. They include:
- Temporary restraining orders
- Emergency restraining orders
- Permanent restraining orders
A Temporary Restraining Order
This type of restraining order is usually valid for two (2) to three (3) weeks. It will be served if a judge believes that you’re in swift danger and you need to be protected before they hear your case. Before it expires, the court will conduct a hearing to determine whether or not to serve a permanent restraining order.
A TRO can also protect your family, vehicle, residence, your children’s schools, your business, and other significant places. If you live with the restrained party, he or she may be forced to vacate your residence.
You are supposed to carry the order at all times, and if there is a violation, you should call the police as soon as possible.
Requesting a TRO
In many cases, you have to apply for the order and present yourself to a judge to give reasons why you need the order. If you provide convincing proof and evidence that justifies the issuance of the order, the judge will serve the order detailing specific actions that the person being restrained is prohibited from taking part.
If a federal court issues the order, the person being restrained might not receive notice of the application. The reason for this is that specific conflicts are time-sensitive. Thus, the court may deem it fit to put the safety of the applicant a priority over the right of the person being restrained to receive notice.
Standard of Proof
In California, if you are applying for a restraining order, the judge will need you to prove your allegations by a preponderance of the proof. This kind of evidence is of a lower standard compared to a situation where you are supposed to prove beyond any reasonable doubt. This means that you only need to convince the judge of there being a possibility of the other party attempting to harm, abuse or harass you, and that threat or harm may happen if you further interact with the party.
The Process of Obtaining a TRO
The paperwork and steps involved to obtain a restraining order vary from one jurisdiction to another. Before you request it, you must ensure you meet the requirement to be given one.
For an easy process, you have to hire an attorney to help you answer any questions you have about the paperwork. Once you have all the answers you need and are sure of what you need, you will take the following steps to obtain the restraining order:
You, with the help of your attorney, will have to complete the appropriate paperwork. Your attorney will help you identify the forms to be completed and help you fill out correctly, so your request isn’t denied unnecessarily. Additionally, you may be required to fill out local paperwork. If you have other issues to resolve, for example, child support or custody, your attorney may advise on the appropriate channel to handle them.
After filing the paperwork, you have to make copies of them. One (1) copy is yours and one (1) for the restrained party. If the order is protecting any other person, they will also get a copy. The original copy of the paperwork goes to the court.
You will hand the paperwork to the clerk of the court who passes them over to the judge. After reviewing the paperwork, the judge will decide whether or not to serve the TRO. As we mentioned earlier, the judge might need you to appear before the court to answer specific questions and to discuss circumstances that led you to request a restraining order.
If the TRO is granted, you should always have a copy with you wherever you go. Also, you should have a copy at places where the restrained party is prohibited from accessing. For instance, if you have security guards where you live or at your business premises, you should give them a copy of the order too.
Note that a judge can enforce a TRO without conducting a hearing or the restrained party being present. However, when it comes to a permanent restraining order, there has to be a formal hearing before it is enforced. If the TRO is necessary, the court issues it on the same day.
The TRO is effective the moment it’s served, and it will remain effective until a hearing for a PRO is conducted. The restrained party usually receives the TRO through the police.
Conditions of a TRO
A TRO may contain different provisions that can forbid the restrained party from doing certain things. Whether a judge will consent to specific requirements of your restraining order is determined based on the case. The following is what the restrained party may be compelled to do for as long as the TRO is valid:
- Stop abuse- TRO, having been approved by the judge, may need the restrained party to stop hurting, threatening, striking or attacking, or battering you.
- Counseling- As the judge’s order, the restrained party may be needed to enroll in counseling classes like alcohol and drug counseling, batterer’s intervention, and anger management classes.
- Total use- The TRO may provide that you have the sole purpose of the residence or car that you and the restrained party owned jointly.
- Vacate from home- The judge may compel the restrained party to vacate the residence they share with you.
- Zero contact- The restrained individual may be ordered to stop communicating with the victim. He or she will be forbidden from calling, sending text messages, emailing, disturbing your peace, harassing, or stalking you.
- Keep a certain distance- The judge may want the restrained person to maintain a specific distance between themselves and you. It is the law of California, the facts as to why the restraining order is being sought, and the judge that determine the distance the party should maintain. For instance, it can be yards or feet. The order may include places like your residence, school, work, and car.
- Peaceful contact- The restrained party may be allowed to have intimate contact with you for a few reasons. For instance, the judge may consider the need to communicate if you have children together and are sharing custody, care, and support.
What to do When Issued with a TRO
When issued with a TRO, you should obey all the provisions it contains like having no contact with the victim, even if you know you have a strong defense that will enable you to win the attempt to change the TRO to a permanent order. You should contact your attorney immediately who will help you prepare for a PRO hearing. Also, you should:
- Collect any physical proof connected to any events or incidents the PRO hearing will be based on like photos, objects, videos, and clothing.
- Prepare any records or documents that may be connected to the PRO hearing like letters, computer records, GPS and phone records, email records, and any other records that may indicate your location when an incident took place.
- Prepare a list of potential witnesses. In the list, include everybody that you think knows about the accusations against you, the incident or the victim. Also, obtain the contact information of the listed witnesses.
All these may be significant because in case the victim made false allegations regarding an incident, the videos or photos might show how the event happened, or the witnesses can attest that you weren’t present when the supposed incident happened. If the victim alleges that you called or texted them repeatedly, the records of your phone calls or texts may indicate otherwise. In case the victim accuses you of driving by their home severally in one day, the records of your GPS may help you challenge the accusations. It is essential to bring this form of information to your lawyer so they can present it in court.
What You Should Not Do
In case you have a petition against you for a permanent restraining order to be issued, we don’t advise you to do the following:
- Destroy proof that you know or think may hurt you. This may make you look suspicious in court. Additionally, it may result in criminal charges
- Disregard or disobey the TRO in any given way
- Attempt to communicate with the victim or the witnesses of the victim regarding the case. You are also not supposed to have contact with these parties, which include calling, texting, or emailing.
If you disobey a TRO, the victim may inform the court during the hearing, or they may file a motion claiming you violated the order. This makes it difficult to defend yourself against the request to effect a permanent restraining order.
In case you and the victim have a child/ children together, the TRO may compel you not to communicate with the child/ children until the court conducts a hearing. In other cases, you may have contact only under supervised conditions. Do not attempt to violate the order by visiting the children in school or at their relatives’ places for the same reason as above; the victim may bring this to the attention of the court during a hearing or file a motion to claim a TRO violation.
Criminal Consequences of a TRO Violation
PC 273.6 makes it a criminal offense to violate a temporary restraining order. If the victim files a motion alleging that you violated a TRO, you will be held in contempt of court. This means that you intentionally failed to adhere to the order of the court. This is an offense that can land you in jail in addition to other consequences.
The consequences for violating a California TRO are based on whether or not you had violated it previously and whether or not the petitioner sustained any physical injury as a result of the violation.
Violating a TRO is a wobbler offense. It could be charged as a felony or a misdemeanor. If you are charged with a misdemeanor, the punishments include a maximum of a one-year jail sentence. Based on the facts surrounding the case, you may be charged with a felony. In this case, the penalty includes a maximum of three (3) years prison sentence. In addition to jail or prison sentence, you may also be subjected to a fine, counseling service, and paying restitution to the victim.
However, for you to be convicted of a TRO violation, the prosecutor has to prove these facts beyond any doubt:
The judge served a valid TRO. If the TRO that was issued against you was accurate, then the law compels you to obey it. Some orders are, however, illegally served. For instance, an order issued by a court that did not have proper jurisdiction to do so or an order that was not issued on a legal basis. If the TRO is illegal, its terms do not bind you to follow it.
If you have reason to believe the TRO that you have been issued with is invalid, you should first consult an experienced restraining order attorney who may help you contest it before being arrested on allegations of disobeying it.
You were aware of the order. The prosecution has to show that you were informed that the TRO was issued against you. This entails having had a chance to read it, even if you did not do so. The TRO will be issued to you by a police officer.
You violated the order purposefully. In case you choose to ignore a legal TRO issued by the court, and then you will be in its violation. For instance, if the order compels you not to contact your ex-spouse then you send them text messages trying to apologize, you are deliberately violating the TRO.
However, if the order needed you to keep personal space between you and the person with the restraining order, then you bump into the person by accident you haven’t deliberately violated the law. In cases like this, our restraining order attorneys may help you to prove that you immediately left the place and did not try to talk with the party once you saw them.
Defenses Against the Issuance of a TRO
Being issued with a restraining order can be unsettling and in most times unexpected. In case you’ve been issued with a TRO and violated it, the chances of the judge are quite high in addition to criminal penalties. Thus, you have a right to defend yourself to prevent a permanent restraining order from being affected and from being convicted. This is because a PRO may impose certain hardships on you. For instance, you may need to move out of your residence for a very long time, stop contacting the people you care about or the order may compel you to stay away from your workplace.
Our attorneys have managed to prevent the issuance of permanent restraining orders following TROs against our clients in San Diego by presenting strong defenses. We have also managed to get criminal charges against our clients dismissed or reduced. We advise you contact us immediately you are served with a TRO so we can start gathering evidence and preparing robust defenses that may help prevent the issuance of a PRO.
Find a San Diego Restraining Order Attorney Near Me
The ability to defend yourself against a TRO depends on a clear understanding of California law. You have to know that in order to deny the allegations against you, you will need suitable proof. Having a skilled restraining order attorney fighting for you will increase the chances of having the best possible outcome.
At San Diego Restraining Order Attorney, apart from helping you with the process of obtaining a TRO, we will also defend you if a TRO is issued against you. Our attorneys have a deep understanding of the law on both sides and will try to get the best possible results for you. Call us at 619-728-6293 and let us know how we can help.
If you require a restraining order in Los Angeles I recommend this law firm: Los Angeles Restraining Order Attorney
