Domestic violence cases are emotionally charging on either party involved. The consequences you face as the respondent, such as getting issued a permanent restraining order, can be hard to bear and the legal obligations hard to understand. When you are issued a permanent restraining order, it can leave you uncertain of what lies ahead. If you have children, your parenting time can be significantly reduced or separated from them altogether. The adverse impacts of a permanent restraining order can leave you stranded on what steps to take.
Acquainting yourself with the knowledgeable counsel of a criminal defense attorney will make this challenging case easier to comprehend. At the Orange County Criminal Defense Attorney Law Firm, we have seasoned criminal defense attorneys well experienced in handling domestic violence cases. We will guide you to understand better what is required of you when issued with a permanent restraining order and the legal steps you can take to defend yourself. Contact us today and get to explore the vast array of legal services we have to offer.
Domestic Violence Restraining Order
Domestic violence is the physical or emotional abuse of a party by their spouse, relative, or individual they had or have an intimate relationship with. It is broad and need not be physical abuse as perceived by many people. It includes but not limited to verbal, physical, emotional, or psychological abuse. Examples are battering, sexual assault, stalking, threats or intimidations, and property damage.
Being a wobbler offense, whether a domestic violence case will be considered as a felony or misdemeanor will depend on the nature of the offense. The factors taken into consideration are the severity of the injuries caused or threats made, and past criminal records or domestic violence records, and the circumstances of the offense.
A domestic violence restraining order is a lawful order given by a court, restraining a party from contacting another party who feels threatened by them. It is given as an act to protect a victim from being abused or receiving intimidating threats from someone they have (or have had) a close relationship with. The restraining order is issued to you in writing; it contains a detailed list of what you are restricted from doing and what you can do.
When a restraining order is issued, it prohibits you from physically contacting the petitioner, their children, and family members, their pets, and their property. Also, the order can restrain you from calling, sending texts or emails, or sending a third party to give the petitioner messages on your behalf. You will be banned from the right to possessing a gun; you will be required to hand in any firearm you may have.
The California Law Enforcement Telecommunications System (CLETs) is made aware when you are issued a restraining order; your details, those of the accuser, and circumstances of the restraining order are sent to their system. CLETs is a state-wide law enforcement tracking system that alerts law enforcers of the existence of the restraining order. They will then require you to turn in your gun and or ammunition.
Types of Domestic Violence Restraining Orders
When an abused party files for a restraining order against you, you are called the respondent, and the applicant is called the petitioner. In line with domestic violence cases, several restraining orders can be issued depending on your case's nature.
Emergency Protective Order
This restraining order takes effect immediately after police respond to a domestic violence call. The police request a judge to give an Emergency Restraining Order right away to protect the petitioner, his/her family, and children. The respondent is required to leave the family home. They should also stay away from the petitioner and their children for up to seven days.
Temporary Restraining Order
As the name suggests, this is a short-term restraining order issued to the accused party. A victim of domestic violence is required to request a restraining order from the court within seven days after the incident. It protects them for roughly 20-25 days until the court hearing is done to determine if the restraining order should continue in effect.
Permanent Restraining Order
A permanent restraining order precedes a temporary restraining order. It is issued after a court hearing if the judge deems it necessary. It is not genuinely permanent; in California, it can last for five years based on your charges' complexity. However, the party who had filed for the permanent restraining order can renew it at the end of the five years; if the abuser still presents a threat to them or their family members.
In this type of order, two parties agree to keep a distance from each other. It is not enforceable by law. Instead, it involves two parties signing a contract to stay away from each other.
Restraints of the Permanent Restraining Order
California legislators have combined a set of rules to enhance the protection of domestic violence victims. Barring physical distance is not an assurance that the restrained person will not impact the victim’s life. Therefore, a combination of terms is used to ensure you as the restrained person does not contact the victim. These terms include:
- It would require you to pay child support if applicable and your partner’s support if you were married or domestic partners.
- It will prohibit you from contacting or going near your partner, children, relatives, and pets.
- You will be required to move out of the family residence.
- You will be required to return any personal items that are stated in the restraining order.
- It will restrict you from making changes in insurance plans that you shared.
- You may be required to undergo a complete 52-week long batterer intervention program.
- It forbids you from spending or making any investment decisions that could inconvenience or harm a shared financial holding with the victim who filed for the restraining order.
- Hand in all your firearms to the respective administer.
Impacts of the Restraining Order on Your Life
A permanent restraining order will affect the following aspects:
When issued with a permanent restraining order in California, it is presumed that you are not fit to have custody rights over a minor child. Your time to parent with your child or children is reduced significantly or put to a stop altogether. The law provides a statute that requires the court to ensure a parent who is a perpetrator of domestic violence does not have custody rights as a precautionary measure.
If your child is a minor, the other parent can file a permanent restraining order on behalf of the child. It is common when the other parent feels that you will endanger the child, or in cases where you abused the child. When the child reaches the age of twelve, they can file their permanent restraining order against you.
However, if you wish to get better chances of getting child custody rights or visitation rights, you can provide evidence to the court to show you are no longer harmful. Showing that you have made steps to ensure the child's safety despite the domestic violence charges will help in your child custody case. Your attorney will provide documents of completed batterer's intervention course, parenting course, and prove you underwent individual therapy for anger management; thus, you are no longer harming your children.
Issuance of a permanent restraining order, however, does not ascertain child custody to either parent. To determine who should have child custody and whether visitation rights will be allowed has to be determined in a different case in a family court. Whatever the custodial battle outcome, you will still be required to pay for your child support.
Move Out Orders
The victim of domestic abuse is allowed to request the accused party to move from the residence they shared. Move out orders are implemented by local law enforcement officers such as a sheriff to protect the party who requested a restraining order and prevent further abuse. The accused is given a few days to get their belongings and vacate the house they shared.
Immigration Consequences for Non-citizens
If you are a non-citizen in California, being charged with felony charges can have you face deportation. However, this rarely happens. If you are a non-citizen, discuss this with your attorney to prevent such adverse consequences.
Loss of California Gun Rights
As a domestic violence convict, you are prohibited from owning a firearm in any state or country in the U.S. For Misdemeanor charges where you did not severely physically injure the victim; the ban can last for up to ten years. For offenses that qualify as a misdemeanor crime of domestic violence and for felony offenses, federal law will generally issue a lifetime ban from owning a gun. There is no way to have this ban lifted apart from getting a presidential pardon, which rarely happens.
A Permanent Criminal Record
Unfortunately, if you are found guilty of domestic violence, it goes permanently on your criminal record. Anytime a routine background check is done, your conviction will be seen. It can affect your employment chances, housing, and other benefits such as state licensing.
Does the Restraining Order Nullify Your Marriage?
As formidable as a permanent restraining order may sound, it cannot act as a way to nullify a marriage. Neither can it be taken as a divorce. These two processes have to be done separately in a different court setting as they would usually be done.
Restraining Order and Jurisdiction
You should be aware that the domestic violence permanent restraining order is not limited to a particular jurisdiction. It is still functional and valid even though you don’t live in the county or state where it was issued. For example, you can have an Orange County restraining order even though you are no longer a resident of Orange County. Supposing you leave California with a restraining order, it will still be useful where you go. If you find the victim outside California and contact them, it will violate the restraining order. The same applies if you come to California with a restraining order issued from another state.
What You Should Do after being Issued a Permanent Restraining Order
- Obey the Order. Whether you agree with being issued the restraining order, it is in your best interest that you avoid contacting the petitioner.
- Collect Documentation and Collect Evidence. If you were falsely accused of the incident that led to the restraining order being issued, with the help of your attorney, you should gather evidence about the events that occurred. You can gather photos, phone records, and emails. It will help build a strong defense to prove you were not guilty as accused
- Get Witnesses. Get witnesses who saw how the events of the incidence stated in the restraining order transpired.
What You Can Do if Wrongfully Issued with a Permanent Restraining Order
Unfortunately, it is possible to be accused falsely of domestic violence and be issued a permanent restraining order. Due to the negative consequences that follow being issued with the restraining order, you must take legal action to have the false allegations proved untrue and clear your name. It is in your best interest to contact a domestic violence defense attorney as early as possible, to help you build your defense and clear your name from the false accusation.
If it is proved that the party who requested the restraining order against you accused you falsely, they can be sanctioned by the court and forced to pay the fees of your attorney. Therefore, the petitioner is discredited for filing for a restraining order in bad faith. In this way, your chances of winning the custodial case are increased. It can also be used to back you up if there is a proceeding divorce case.
Appealing a Permanent Restraining Order
As man is to err, judges may, at times, fail to analyze and evaluate all the evidence critically when making judgments and make an unfair judgment. Supposing the accused believes that the judge did not reasonably consider the evidence and the ruling was unfair, they can file for an appeal. In the appeal, they can request lifting of the permanent restraining order as long as the basis of the appeal is on a procedural error or a judicial one.
However, even if you will file or have filed an appeal, you should still observe the restrictions listed on the restraining order. Attempting to contact the protected person can lead you into deeper legal problems. Your attorney will go through the transcript and file a Notice of Appeal within sixty days from the hearing.
A three-judge panel will analyze the appeal. All the evidence and documents about the case will be examined. When making a ruling, an appellate court only considers the information and evidence used during the initial hearing.
Some possible defenses your attorney can use in your defense are:
- You were falsely accused of domestic violence charges
- It was an accident
- You acted in self-defense
- You did not cause the injuries suffered by the victim
Violation of a Restraining Order
When issued with a restraining order, the respondent should obey the order and keep from contacting the petitioner. If you wilfully act against the terms of the restraining order, this can be referred to as a violation of a restraining order or contempt of court and is punishable by law. In cases where you have no criminal records and the first time you violate the restraining order, the judge will be lenient. However, if you have a past criminal record or repeated the violation, the judge will be more stringent.
For your action to be considered a violation of the terms of the restraining order, you must be aware of the restraining order, and the enforcers must have affirmed that you understood what is required of you. If a judge made a significant error during the filing process, then an action that may have been a violation of the order may not be considered as so.
It must be established that the restrained person is in the right state of mind to follow the terms of the restraining order. For instance, if a restrained party violates terms of the restraining, and it is discovered that he/she is not mentally fit. The penalties for violating the restraining order will not be applied.
Violating the restraining order is a wobbler crime; it can fall into misdemeanor or felony charges. Therefore the penalties may differ in different situations. To be convicted of violating a restraining order, the prosecutor must prove that:
- The restraining order was lawfully issued to you by a court, and you knew of it
- You wilfully (on purpose) violated the court order
- You could have followed the court order in the said circumstances, but you failed to
Violating a restraining order rarely affects your immigration status. However, in some instances, it might result in the deportation of a non-citizen defendant.
After the violation of a restraining order, if the judge rules it as a misdemeanor charge, it earns you a one-year jail term or a maximum fine of $1000. On the other hand, if ruled as a permanent felony, it can earn you up to three years of a state sentence or a maximum fine of $10000. When you find yourself in a situation that causes you to breach the restraining order requirements, here is what to do.
Contact your Attorney
You must reach out to your attorney if you violate a permanent restraining order. Your attorney will ensure you are well informed of the possible charges resulting from the case's violation and possible outcomes. He /she will prepare you for the hearing and suggest the options you can take to lessen the penalty and avoid so as not to lengthen the case and bring about more complicated outcomes. Preparation is vital when it comes to the success of defense cases of a restraining order violation. Your attorney can use the defense that you did not intentionally violate the order. Alternatively, if you unlawfully made contact with the protected person, you can take a plea bargain.
Avoid Contacting the Petitioner
It may seem thoughtful to you to go clear things up to the party who requested a restraining order after a violation. Despite your intentions being diplomatic, this only aggravates your offense. It could lead to further disagreements. Consequently, you may commit further offenses such as threats or cause further abuse. Do not try to contact the petitioner for any reason whatsoever after you violate a permanent restraining order. Follow the advice your attorney will recommend to you strictly to avoid acquiring multiple charges.
Accept the Offered Plea Bargain
When your case goes to trial, there is an option to plead not guilty or accept a plea bargain. Your attorney will mostly advise you to take the plea bargain; it is the most lenient option that will save you from serving a jail term. Taking it saves you the stress of prolonged court hearings that could end in more significant repercussions. Additionally, it will significantly cut on the penalties you have to face.
Here are other directives that a court might issue if you violate the restraining order:
- Participate in batterers intervention programs
- If domestic violence occurred because you were intoxicated, you could undergo alcohol or drug counseling or rehabilitation in addiction cases
- Undergo parenting programs to help you learn to create a conducive environment for your child if you have one
Find a Restraining Order Attorney Near Me
It is crucial to seek legal guidance when you are issued with a permanent restraining order or any other form of domestic violence restraining orders. Whether you were falsely accused or guilty, knowing which legal steps to take to strengthen your defense or reduce penalties is critical. Our expert defense attorneys at the Orange County Criminal Defense Attorney Law Firm will ensure you have the best legal help if you are issued with a restraining order or you are facing charges related to domestic violence. For more information, call us at 714-740-7848.