Under California law, a judge can prohibit certain conduct through injunctions like a restraining or protective order. A restraining order is a legally binding injunction requiring you to stay away or avoid contact with a particular person. Often, the court issues this order to protect victims of domestic violence or other forms of physical violence from harm. In addition to staying away from an alleged victim, a restraining order is accompanied by various stipulations you must follow throughout the order. The court can issue a temporary or permanent restraining order depending on the circumstances of the underlying offense.
A permanent restraining order can last up to five years, and the legal obligations accompanying the order are hard to understand. If you have children with the person seeking the restraining order, your time with the children could be compromised. Since the court can order that you move out of your way, this will significantly affect your life. Therefore, acquitting yourself with the guidance of a skilled defense lawyer is key. At Riverside Criminal Defense Attorney Law Firm, we have extensive knowledge and experience to guide you through the process of defending yourself against the PRO order in Riverside, CA.
What is a Permanent Restraining Order?
A restraining order is a court action instructing a party to refrain from certain actions. Mostly, restraining orders are associated with domestic violence cases. Usually, when a stranger commits a violent crime against you, you may never have to see them again. Unfortunately, abuse is common in marriages, domestic partnerships, and other relationships. If a person feels that you pose a threat of injury to them, they can petition the court for a restraining order against you.
When there is a report of abuse, the court tends to side with the alleged victim. Some of the cases that could warrant the issuance of a permanent restraining order include:
Assault and battery
In California, a restraining order can be permanent or temporary, depending on the nature of the underlying situation. A temporary restraining order is a short-term court order lasting up to fifteen days. Mostly, the court issues the TRO to keep you away from the alleged victim while awaiting the outcome of a PRO hearing. Victims obtain a TRO by reporting incidences of violence to the court as soon as they happen. If you are issued with a temporary restraining order, you must prepare to battle out a permanent order.
In contrast, permanent restraining orders last longer. A PRO is a tool used to protect victims of domestic violence and other forms of harassment. Permanent restraining orders are common in divorce cases. If the court issues this order against you, you must 0bey the following rules:
Refrain from all communications with the victim. When the PRO goes into effect, the court requires you to avoid contacting the victim in person or through electronic communication.
The requirement is to stay away from the victim. With a restraining order in place, you must keep a distance of at least 100 yards from the victim. If you share a residence with the victim, you may need to pack your belongings and move out immediately. Moving away allows you to obey the stay away order.
Stop abusive actions towards the victim. Any attempts to harm or harass a victim with a PRO can attract charges for PRO violation.
Forfeit child custody. In domestic disputes, the court makes decisions that serve the children's best interests. If your spouse or domestic partner files a permanent restraining order against you, the court considers you a threat to the safety of your children. Therefore, you may be required to relinquish custodial rights. However, it is important to understand that the PRO will not serve as a custody order. Child custody issues are handled in family court.
Payment of child support. Issuance of a PRO causes a strain on the relationship with your children. The family court could order supervised visitations or even no contact with minors. However, it is important to understand that this order does not absorb you from the duty to pay child support.
Surrender use of the family property. In addition to the requirement to move away from you, the judge can order that you surrender the use of the family vehicle to the victim.
Avoid making decisions that harm the victim. Most people assume that contacting a victim is the only way to violate a restraining order. With the PRO, the court requires that you refrain from making any spending, financial, or investment decision that could harm the victim.
Petition for a Permanent Restraining Order
When a person seeks a restraining order against you, they must go to court to seek the order. After filing a petition for the order, the court issues notice on the commencement of the case. The alleged victim must attend the court dates to avoid a dismissal of their petition. When there is a petition for a restraining order against you, the court notifies you, and you have a chance to defend yourself against this action. Failure to oppose the request for order results in a verdict in favor of the petitioner.
As the case is pending, the court will issue a temporary restraining order that lasts up to fifteen days. At the permanent restraining order hearing, the petitioner’s circumstances must meet the following criteria:
There must be evidence proving that you abused or harassed them
You and the alleged victim must be in a certain form of relationship
If the case does not satisfy these requirements, the petitioner may lose the case or have to file another type of restraining order. When you receive a notice from the court stating that someone has filed a restraining order against you, you must seek legal guidance. Your attorney will help you argue against the restraining order action and the conditions imposed with the order. If the judge validates the petitioner’s claims, the court may issue the permanent order immediately.
Modification of a Permanent Restraining Order
The action is not final even when the court grants the permanent restraining order against you. A permanent restraining order can be renewed, extended, or modified when circumstances change and upon the victim’s request. The judge will review the circumstances when the petitioner files a request for order modification. If children are listed in the restraining order, the judge decides while considering the child’s best interests.
There are times when you request the court to modify an order issued against you. However, modification of a permanent restraining order upon an offender’s request is more challenging than when the request comes from the victim. Before the court grants you the modification, you must provide sufficient evidence that a modification will not put the victim at further risk of harm.
Types of Permanent Restraining Order
There are several types of permanent restraining orders, and the type of order you receive depends on your relationship with the victim and the form of harassment involved:
Domestic Abuse Restraining order
The court will issue a domestic violence restraining order if you have a relationship that qualifies as domestic with the alleged victim. A qualified domestic relationship means you are a current or former spouse. Other people with whom you have family relationships, like parents, children, or siblings, can file an order against you if you threaten their physical or emotional wellbeing.
Elder Abuse Restraining Order
An elder abuse PRO is issued to prevent individuals over sixty-five years from potential abuse. Unlike other forms of permanent restraining, physical injury is unnecessary to issue this order. Poor spending of an elder’s money or financial exploitation can warrant the issuance of a protective order.
Workplace Violence Restraining Order
The workplace restraining order is applicable if an employee experiences a pattern of occurrences that makes them fear for their safety. In California, an employer can file a restraining order for the employee. However, it must be evident that the employee has suffered workplace harassment or violence or there is a credible threat to their safety
Impact of a Permanent Restraining Order on your Life
Issuance of a permanent restraining order against you can dramatically change your life. With impact on your family, personal relationships, mental health, and employment. Being unprepared for such an outcome from your domestic violence case is devastating. A permanent restraining order will affect you in these ways:
When a permanent restraining order is issued against you, you are presumed unfit to have custody rights over a minor. California law has a statute that prevents perpetrators of domestic violence from holding child custody. If you are the current custodial parent, the other parent could take you to family court seeking a change in child custody orders. Your parental time is reduced significantly, and your relationships with the children could be strained.
If you have minor children, the other parent can file a restraining order for the child, which ensures that you will have zero contact with them. Such a move is common when your underlying domestic violence crime was against a child or endangered the child’s safety. A permanent restraining order can be placed against you for children over twelve years old.
You have better chances of lessening the rift between you and your children or acquiring visitation rights if you can prove that you are no longer harmful. Proof that you have made important steps, such as domestic violence counseling, is key. It is important to understand that a permanent restraining order does not change child custody orders. The parent who seeks a modification must contact the family court where the order was made.
Change in Living Arrangements
When the court issues a permanent restraining order against you, you are expected to keep a distance from the alleged victim. Therefore, you must move out of the residence you share with the victim. The law enforcement officers will implement a move-out order immediately after the issuance of the restraining order. Having to move out of your home is devastating. Moving to a new location can affect your work and relationships with your family and friends.
Loss of Gun Rights
Most permanent restraining orders are issued after a conviction for serious domestic violence. In the court's attempts to protect the victim from further harm, you will suffer a firearm ban. A firearm ban means you cannot legally own, purchase or use a firearm.
The incident could significantly impact your record if a domestic partner or another person seeks a permanent restraining order against you. You will need a steady job with all the legal fees you need to appeal the restraining order or your domestic violence case. Unfortunately, when potential employers discover that there is a restraining order against you, they can use this fact as a basis to deny you employment.
In California, all agencies have access to all criminal databases for the state. During a background check, the employer will discover not only your convictions but also court orders issued against you. If you already hold a job in professions that require state licenses, a restraining order can cause a suspension or revocation of your professional license.
Also, fostering a child or adoption is impossible when a permanent restraining order is issued against you. Restraining order history will make it impossible if you plan to run for a political seat or join the military. Therefore, it is vital to take the necessary steps to have the restraining order lifted.
How Should I Respond to a Permanent Restraining Order?
If someone files a PRO order against you, the judge will assess the risk you pose to the person and decide to issue or deny the order. If you are served with a permanent restraining order, you can handle the situation using the following tips:
Obey the Order
Sometimes, a restraining order is not necessary, given the circumstances. Having a permanent restraining order could cause significant inconvenience to your life. However, even when you do not agree to the order, you must obey it. Some order conditions, such as limited contact with your children, are difficult to follow. However, a violation of any of the conditions in the restraining order can result in criminal charges for violation of the restraining order.
Gather Evident and File for a Dismissal
If you receive a temporary restraining order, it may indicate that a permanent restraining order is underway. Therefore, you must begin collecting relevant evidence to dismiss the claims referred to in the restraining order. Common evidence, in this case, will include photographs of the alleged incident, documentation, and witness testimonies. Such evidence is useful in proving that you are a victim of false accusations and there are no grounds for a restraining order. If the court has already issued the permanent restraining order, you can seek to appeal your case.
Dismissal of a Permanent Restraining Order
Filing a permanent restraining order has serious consequences for the life of the restrained party. Often, a permanent restraining order issuance begins with a temporary order. When the court issues a temporary restraining order, you have up to three weeks to appear in court and defend yourself against the claims and need for the restraint.
During a restraining order hearing, the judge will assess different documents and pieces of evidence presented to determine whether there is enough risk to warrant the issuance of the permanent order. The consequences of an unsuccessful restraining order hearing will have significant effects on your life and relationships. This results from restricted movements, limited contact with your children, and potential prosecution for violating the order.
Although permanent restraining orders last until the time has expired, you can seek an early termination or dismissal of the order. There are two main ways through which you can have the order removed. First, the alleged victim can petition the court to withdraw the order. If the victim is unwilling to take this action, your attorney can argue that the order was unnecessary.
For permanent restraining order, you can seek its dismissal by appealing your criminal case. Under federal law, all defendants are entitled to appeal the decision to convict them in state courts. In California, you have up to sixty days to file an appeal following your conviction. If you can prove substantial errors in your sentencing can accuse the appeal court judge of overturning the conviction. Winning an appeal is challenging. However, your appeal could end favorably under these circumstances:
Evidence that hurt your case was illegally used.
Evidence that could have helped the case was disallowed inappropriately
The jury delivered a confusing verdict
The judge applied the wrong laws
Winning an appeal for a domestic violence case would increase the chances of a dismissal of the permanent restraining order.
Violation of a Permanent Restraining Order in California
Under California PC 273.6, it is a crime to knowingly or intentionally violate the terms of a restraining order. There are several ways you can violate a PRO, including contact with the victim, further violence against the victim, or failure to pay child support in retaliation for the restraining order. Before the court finds you guilty of restraining order violation, the prosecution must prove these elements:
A court legally issued a restraining order against you. Not all protective or restraining orders are valid. If the court lacked proper jurisdiction to issue the order or the order did not reach you, you cannot be found guilty of violating PC 273.6
You knew about the protective order. When the court issues a PRO against you, the court must notify you of the action. If you attend the PRO hearing, you can learn about the order. However, in cases where you did not show up and the notice does not reach you, the court can dismiss the allegations of a restraining order violation.
You deliberately violated the PRO.
Mostly, a violation of CCPC 273.6 is a misdemeanor. A conviction under this statute results in a one-year jail sentence and a $1,000 fine. If you have a prior conviction under this statute or your violation involved violence on the victim, the prosecution can file felony charges. A felony conviction for violation of a restraining order attracts a three-year prison sentence and a maximum of $10,000 in fines.
Defense Against Restraining Order Violation Charges
You can fight your PC 273.6 charges using the following arguments:
Lack of Knowledge
You are not guilty of a restraining order violation unless the prosecution proves that you knew the order. If you did not attend the PRO hearing, you could argue that the notice if the order did not reach you.
Lack of Intent
Violation of a restraining order is a crime of specific intent. Therefore, you must willfully violate the order for the court to find you guilty under this statute. Therefore, you can argue that while you may have violated the order, the violation was accidental.
Find a Skilled Riverside Criminal Defense Attorney Near Me
The court issues restraining orders to prevent contact between a victim and a defendant in a domestic violence case. Whether you are a victim of false accusations or guilty, a permanent restraining order can leave you stranded and uncertain of the future. Permanent restraining orders last longer than other forms of domestic violence protective orders and can affect your relationship with your family and other aspects of your life. If you violate any of the stipulations put on the restraining order, you risk facing criminal charges and a conviction under California Penal Code 273.6.
If the court determines that you violated the restraining order, you will face serious legal penalties, including jail time and costly fines. If you are issued with a permanent restraining order or wrongfully accused of a restraining order violation seeking legal guidance is key. At Riverside Criminal Defense Attorney Law Firm, we have seasoned attorneys who understand the ins and outs of restraining order laws. To ensure the best possible outcome, we offer competent legal guidance for all our clients facing baseless restraining orders or battling restraining order violation charges in Riverside, CA. Contact us today at 951-946-6366.