A restraining order is also called a protective order. It is a court-issued order that assists domestic violence victims in preventing further contact with the perpetrator. Restraining orders also help non-domestic violence victims, for instance, victims of stalking or harassment, in the same manner.  In essence, it bars one party from coming close or contacting the party who has applied for the order. California law recognizes three types of protective orders— emergency protective orders, temporary restraining orders, and permanent restraining orders. This article looks at temporary restraining orders in detail.

To understand how a temporary restraining order works, you need help from a skilled domestic violence attorney. It could be you want to apply for one, or someone has obtained it against you. A lawyer's insight will help you with how to proceed. At Riverside Criminal Defense Attorney Law Firm, we will guide you on restraining order matters and ensure you obtain the best possible outcome. Call us right away for consultations and to learn more. 

Temporary Restraining Order Overview

A temporary restraining order (TRO) refers to a court-issued order to stop a person from taking various actions against the other but— just for a given period. Many people link TROs to domestic violence cases. However, these restraining orders can also address other dangerous situations that are not family-related, like sexual violence or stalking. And some temporary restraining orders do not address threats/violence prevention, like those meant to uphold the status of a couple’s finances in a divorce proceeding.

A temporary restraining order is followed by a permanent restraining order (PRO). Before a judge issues a PRO, they must hold a hearing. If they conclude that the victim requesting protection is in danger at the hearing, they may issue a PRO.

Another form of restraining order is the emergency protective order (EPO). This comes before the temporary restraining order and can be requested by a law enforcement officer while still at the crime scene. It is obtained if the officer reasonably believes the individual needing protection is in imminent danger of domestic violence from the party against whom the order is being sought.  After it has been issued, an emergency protective order is effected immediately and remains effective for a week. An EPO is meant to protect the victim while waiting to obtain a TRO.

Common Temporary Restraining Order Types

There are three types of temporary restraining orders. They are:

     1. Domestic Violence TROs

Under California law, a person facing the danger of abuse or violence from any family member can request an order from the court to prevent the abuse/violence and protect them. This order is called a domestic violence protective order.

If the situation is deemed urgent, the judge might issue a TRO that is affected right away but lasts just for a given period.

Who Can Obtain a Domestic Violence Temporary Restraining Order?

Before, domestic violence-related TROs were restricted to victims facing the danger of violence/abuse by close relatives, such as current and ex-spouses. However, the current state's law includes more relatives against whom TROs can be issued. Also, the domestic violence definition has been expanded to include violence/abuse between parties in close relationships that are beyond a traditional family setup, like:

  • Divorced couples
  • Separated couples
  • Domestic partners
  • Parties that are dating or dated before
  • Parties that cohabit
  • Parties that have a child together
  • Parties that lived or currently live together without having been married

If you are intimidated or endangered by a person who does not fit California's description of domestic abuse, you may still be capable of obtaining a temporary restraining order for your protection.

And even if you are in any of the above relationships with the abuser, your capability to obtain a TRO depends on California’s description of abuse. In California, abuse entails behaviors such as impersonating the alleged victim online, damaging the victim's emotional or mental calm, and making annoying calls.

     2. Temporary Restraining Order Against a Non-Family Member

If you are dealing with threats of abuse or violence in a case that does not involve household members, family members, or any other intimate party, you could still obtain a TRO. California state has laws that allow the issuance of TROs to avert:

  • Stalking or harassment
  • Abuse against elder/vulnerable adult
  • Sexual assault
  • Gun violence (per the red flag laws)
  • Workplace violence

Like domestic violence-related TROs, you could follow a simplified process to obtain any of the above orders.

     3. TROs for Divorce Cases

As far as family matters are concerned, there is another form of TRO prevalent in divorce cases. Even though they may also address possible abuse, these temporary restraining orders aim at upholding the status quo in spouses’ finances and time with the children while divorce proceedings are ongoing. For example, temporary restraining orders issued in divorce cases often bar either partner from:

  • Moving minors from the state with no permission from the court or other parent
  • Canceling insurance policies
  • Taking the children or other spouse off health insurance
  • Changing beneficiaries on retirement accounts, life insurance policies, and so on
  • Taking on huge debts
  • Transferring, selling, or otherwise doing away with assets

How to Obtain a Temporary Protective Order

The process for obtaining a temporary protective order is governed by the state's laws and the circumstances of the situation at hand.

Obtaining a TRO for Domestic Violence

In cases to do with domestic violence, you could submit your temporary restraining order application directly to the family court clerk. You will have to complete some forms. California state provides the application instructions and forms online. Generally, you will have to provide details regarding when the defendant threatened or hurt you and the specific order you requested. 

You should, of course, dial 911 if you are in imminent danger. Once the officers come to the scene, they may call a judge to request the order on your behalf. Otherwise, you may have to present yourself in court after the officers have contained the situation, apprehended the abuser, or simply ensured you could leave the scene safely. You could also contact law enforcement if you require an immediate court order and courts have closed, even if the abuser is not present at that time. For example, when your abuser calls to threaten you with imminent violence.

Once the officers have investigated, they will probably reach out to the judge on-call to request a court order for you. The judge may want to speak to you before determining whether to agree to your request.

The court judge who assesses your request will determine if a TRO is obligatory for your protection under the provisions of the law and depending on the info you provided. For example, judges in California will issue a TRO if they believe you are in imminent danger of violence and require protection before the court hears and rules your case as defined under Code of Civil Procedure (CCP) 527.6.

Should the judge decide that your case does not satisfy the criterion for a temporary restraining order, you could file an appeal. However, you will need to wait for a hearing, and the defendant will be entitled to be present and contest your request for the order.

Obtaining a Non-Domestic Violence/Abuse Temporary Protective Order

California law allows restraining orders in situations unrelated to domestic violence, like sexual violence and stalking. You can use the same simplified process if you want to apply for a non-domestic violence TRO. But the guidelines for obtaining these court orders are often stricter than those for acquiring domestic abuse TROs.

With some kinds of temporary restraining orders, the victim/potential victim does not apply for the order in the real sense. For example, an employer may seek to obtain a workplace restraining order to protect their employees from threats or violence at the place of work. On the other hand, school employees or law enforcement officers may seek to obtain a TRO to avert gun violence.

And in cases unrelated to domestic abuse and are not covered by any restraining order law, the standard process is to bring an OSC (Order to Show Cause) with the judge seeking a temporary protective order as part of your application. Order to Show Cause is a means to have your request reach a judge quickly. However, remember that preparing plus filing an Order to Show Cause requires you to understand court regulations, so you will likely have to seek help from an attorney.

The Validity Period of a TRO

Most TROs remain effective until there is a court hearing where you as the victim or petitioner and your abuser as the defendant may appear in front of a judge, provide proof and argue against or for a permanent protective order. Generally, the hearing must occur within a given period, usually within approximately fourteen to twenty-one days.

Before a temporary restraining order, an emergency protective order is issued, which lasts only seven calendar days or five business days. Once the validity of the emergency restraining order elapses, you will have to take yourself to court to apply for a TRO. Once the validity of the TRO ends, you will need to apply for a permanent protective order. The period a permanent protective order remains effective varies based on what type of protective order it is. For instance, domestic violence restraining orders remain valid for five years, while civil harassment protective orders are valid for three years.

TROs imposed as part of the divorce generally remain effective until the divorce case ends. This could be several months to years in given cases.

What to Do if a TRO is Issued against You

If a TRO has been issued against you, you will be served a copy of it and notice concerning an upcoming hearing. The order details everything the court prohibits you from doing. It may also list actions you have to take. You need to act fast if you intend to fight the order's enforcement. You may only have a short period to respond to the order and prepare for the court hearing. Here is what you should do:

Read the Whole Order and Comply

It is worth repeating that you must go through the entire TRO so you do not violate it. Also:

  • Determine when the hearing will be held and the deadline to file response papers
  • Find out what the victim is alleging against you, plus any proof they have
  • Know your constitutional rights. For example, the right to receive the hearing notice, present proof, and hire an attorney.

The legal right to legal representation does not mean cost-free representation. A protective order is a civil case. Therefore, you do not have the right to a court-appointed lawyer or public defender. This right is accorded to needy criminal court defendants.

Call an Attorney Experienced in Restraining Order Matters

You do not have to hire an attorney to help you address your restraining order matters. You can represent yourself. However, it is generally ideal to contact a lawyer. Go for a lawyer specializing in divorce or family law. They have addressed various restraining order matters and are typically the best place to begin.

Review the TRO against you with your lawyer and read all the evidence and allegations. The lawyer can help you develop a defense strategy and defend you before the court.

Collect and Organize Proof or Documents

Using your lawyer's guidance or even by yourself, you should:

  • Gather physical evidence that relates to any events or incidents the petition addresses, like objects, videos, photos, and clothing
  • Assemble records or documents relating to the matter, like GPS and phone records, emails, letters, computer records, receipts, and any records that may be your alibi
  • List all potential witnesses. Include any individual you think bears info about the petitioner, accusations, or incident. Also, obtain the contact information of witnesses.

When you have a TRO against you, and the petitioner seeks to obtain a PRO, they have to prove all the allegations, generally by a preponderance of the evidence. The above info could be helpful to disprove or discredit the petitioner's claims. For example, you may be capable of proving your alibi. Or, your phone records may contradict the victim's allegations of repeated texts or phone calls.

Attend the Hearing

You do not have to attend the hearing. Although, if you do not appear, the judge may, and is likely to, issue a PRO. The restrictions and conditions of a PRO are usually stricter than those of a TRO. For instance, the PRO may:

  • Decide on temporary child custody and visitation rights
  • Order the custody and care of family pets
  • Order you to pay the victim's mortgage, rent, child support, and household bills
  • Prohibit you from possessing guns

The hearing may be your only chance to present proof, question the victim concerning the allegations, and tell your side of your story. Ensure you are punctual in court, comply with the general rule: ‘do not speak unless spoken to,’ and address the judge as 'Your honor.'

Violating a TRO

Violating a TRO is a severe offense under Penal Code 273.6 that may subject you to an incarceration period. And even without landing you in prison, violating a TRO could work against you during the hearing causing the judge to issue a permanent restraining order.

You violate a TRO when you fail to do as it says. Although, the prosecution must prove these facts for the judge to convict you of this offense:

  • A court legally issued a TRO,
  • You knew the order existed,
  • You had the present capability of following the order, but
  • You willfully violated it

Regarding knowledge, you must have been aware the order existed to be guilty. This includes having the chance to read the TRO even if you did not. And 'willfully' means you violated the order purposely or willingly.

If you commit another offense while violating the TRO, you could be charged under 263.6 PC and the law governing that other crime.

Violating a TRO is mainly considered a misdemeanor under California law, punishable by a fine of a thousand dollars and a jail time of a year.

Although, this crime is treated as a wobbler when it is your second time violating a TRO, and your violation was a violent act. A wobbler crime is one that the prosecuting attorney can charge either as a felony or misdemeanor based on the facts. If found guilty of a felony, you will be subject to ten thousand dollars in fines and a prison time of three years.

The good news is that violating a TRO will not affect your immigration status. There are instances when a conviction of a criminal offense leads to the deportation or inadmissibility of an immigrant defendant. An example is when the accused is pronounced guilty of an aggravated felony.  However, violating a TRO is generally not one of those crimes.

Violating a TRO will also not affect your gun rights if convicted of a misdemeanor. But if found guilty of a felony, your gun rights could be impacted. California law states that any felon cannot possess or own a firearm. This means you will be denied your firearm rights if convicted of a felony violation of a TRO.

Before a conviction, you are given a chance to defend yourself against the TRO violation charges, and you and your lawyer can raise various defenses. Among the legal defenses your lawyer can help you argue are:

  • It was not a lawful order
  • You did not know the order existed
  • You did not violate the order willfully

You can only be convicted of violating a TRO if you violate a legally issued order. You can, therefore, argue that the TRO was not lawfully issued. It could be that no legal grounds existed for the court to issue the order.

Also, you need to have known the TRO existed to be convicted of violating it. You can thus argue that you did not know the order was issued against you. Perhaps the petitioner/victim did not serve you with a copy of the order.

Lastly, you must have willfully violated the TRO to be found guilty. You can argue that even though you violated the TRO, you did not act purposely; rather, it was accidentally.

Note that you can usually have your criminal record expunged if found guilty of violating a TRO. This is the case provided you completed probation or your jail term, whichever was imposed.

Usually, restraining orders do not reflect on criminal background checks because they are, in actual sense, civil matters. However, if you violate a protective order, the violation will reflect on criminal background checks.

Note that a victim (the protected party) cannot be in legal trouble for contacting the restrained party the order was issued against. Only the restrained party can be subject to arrest and charges for violating the restraining order. That said, if there is a restraining order against you, you should not entertain the victim contacting you. You could use the victim's attempts to reach out to you as proof in court. You could argue that the victim does not fear you; thus, the restraining order is not necessary anymore.

What If the TRO Overlaps With Another Order?

If the court has issued two orders against you and they are conflicting, the most recently issued order will typically prevail. Practically, the court judge will be informed of the likely overlap and will have to address it when issuing the latest order.

For instance, suppose you have been issued a custody court order calling you as the non-custodial parent to take and return the children after the visitation period where they reside with the other parent (custodial parent). However, later, the judge orders you to keep away from your ex-spouse's home due to threats/domestic violence. In this case, the restraining order would prevail over the custody order. The court would likely provide an alternative way of picking up and dropping off children. They could order that it happens in a neutral area where other people are present or at the local police station.

Find a Skilled Domestic Violence Attorney Near Me

Restraining orders, including TROs, are serious matters. Whether you need to apply for a restraining order or defend yourself against one, you need legal help. An experienced attorney understands the law, court proceedings, and rules of evidence and will help you through the application procedure or develop a defense strategy. At Riverside Criminal Defense Attorney Law Firm, we approach all cases as though we represent our family members. Legal matters can be stressful, and we are devoted to being available 24/7 to help our clients. We offer comprehensive, cost-free, and confidential consultations before taking on a case. Call us at 951-946-6366 for our legal assistance.