A temporary restraining order (TRO), helps to protect people facing different forms of harassment. A court may issue a TRO to protect domestic violence victims, civil harassment, workplace violence, elder abuse, and dependent adult abuse. The order prohibits a defendant from abusing or even contacting the victim.
Typically, the court issues a temporary restraining order for 21 days. However, in some cases, the period may extend beyond 21 days. When the TRO expires, a victim can seek a permanent restraining order to keep the accused away. An attorney can help you fight a temporary restraining order issued against you. Your attorney could also defend you if you violate the terms of a restraining order. The Orange County Criminal Defense Attorney Law Firm can guide you on all issues regarding restraining orders issued against you.
Definition of Domestic Violence Temporary Restraining Order
According to California law, domestic violence refers to abuse or threats of abuse when the victim and the abuser share or share an intimate relationship. Some of the intimate persons include your current or former spouse, domestic partner, a person you dated or cohabited with, or a person with whom you have a child. As long as the victim and the abuser are related by blood or marriage, they share an intimate relationship.
You could be guilty of domestic violence under California law if you commit any of the following facts:
- Sexual assault
- Inflicting physical harm or attempting to inflict physical harm on the victim recklessly or intentionally
- Threatening the victim including threats of physical harm or harm to the victim’s loved ones
- Stalking, harassing, hitting, threatening, or disturbing another person’s peace
- Destroying the victim’s property
Physical abuse could take many forms. You could be guilty of physical abuse if you hit, push, shove, or push the victim. You might also be guilty of abuse if you prevent the victim from moving freely. In some instances, domestic violence might include harassment of family pets.
- A temporary domestic violence restraining order will protect the victim from abuse or threats of abuse from the perpetrator. A victim can file a temporary domestic violence restraining order as long as you've abused or threatened to abuse him or her. For the court to approve a domestic violence restraining order, it should be evident that you have or had a close relationship with the victim. A domestic violence restraining order may apply If you are the victim are:
- Registered domestic partners or married
- Separated or divorced
- Used to date or are currently dating
- Used to live together or are currently living together. In the case of living together, you must be more than roommates.
- You have a child together.
- You share other close domestic relationships, including child, parent, sibling, grandparent, and in-laws.
Your spouse could also file a domestic violence restraining order against you on behalf of your child. The court may approve this order if it's evident that you're abusing, harassing, or threatening a child. If a child is older than 12 years, he or she may file a TRO against you on his or her own.
Impacts of a Domestic Violence Temporary Restraining Order
If your spouse or another close relative files temporary restraining order against you, it could have detrimental impacts on your life:
- The court may prohibit you from contacting or going near the victim including your spouse, children, relatives, or other people who live with you
- You might have to stay away from your home, your child’s school, or place of work
- If you live with the victim, the court may order you to move out of your home
- You could lose your gun rights. This would make you unable to buy or possess a gun in California. If you already have a firearm, you have to turn in the firearm when the restraining order takes effect.
- A restraining order may also have an impact on your immigration status. For instance, you might be deported from the U.S after a conviction of domestic violence and issuance of a restraining order.
- The court may require you to pay spousal support even while living apart from your spouse.
- You may have to pay child support. The court may also require you to honor visitation and child support orders.
- You might have to stay away from your pets.
- In some instances, the court orders the restrained person to transfer rights to account or cell phone number to the victim.
- You may have to pay certain bills even while living separately with the victim.
- You would not have the authority to make any changes to your insurance policies.
- You may not have the liberty to spend money or incur heavy expenses that could affect your spouse or domestic partner's property.
- The court may order you to return or release certain property.
When the court issues a restraining order, it enters the information in a state-wide computer system known as CLETS. All the law enforcement officers in the state have access to this system. The restraining order will work everywhere in the United States. Therefore, you can’t violate the terms of the restraining order just because you are out of California.
If you move into California and you have a restraining order issued in another state, the restraining order will be effective in California. As long as a tribal court issued the restraining order in California or any other state in the U.S, the court will enforce it.
What a Restraining Order Can’t Do
Despite the many implications of a restraining order, there are several limitations of a restraining order:
- A temporary restraining order or even a permanent restraining order can't end your marriage or domestic partnership. A restraining order is not a divorce. Therefore, if the victim decides to divorce the defendant, the victim has to file a divorce case.
- A restraining order can't be an avenue for establishing the paternity of your children with the victim. Therefore, even if the victim obtains a restraining order against you, you can't be subjected to a paternity test unless you agree.
Civil Harassment Temporary Restraining Order
Civil harassment involves a wide range of activities, including sexual assault, stalking, threats of abuse, or other forms of serious harassment. You could be guilty of civil harassment if you harass a person with whom you’ve never shared a close or intimate relationship. For instance, your friend, neighbor, or roommate might accuse you of civil harassment. Civil harassment can only apply if the victim is not included in the list of domestic violence victims. If you subject your cousin, uncle, aunt, nephew, or niece to harassment, this is civil harassment and not domestic violence.
According to the law, you could be guilty of civil harassment if you convey a real or credible threat of violence on another person. The credible or real threat of violence entails acting in a manner of communicating information that would make the victim fear for his or her safety or the safety of his or her family. You could be guilty of civil harassment if you make harassing phone calls to the victim. Other ways of harassing the victim include sending offensive or threatening emails.
A person may file a temporary civil harassment restraining order against you if you have abused or threatened to abuse a person not closely related to you. You could have stalked, sexually assaulted, or seriously harassed the victim. For the court to approve the temporary restraining order, it should be evident that the victim was seriously annoyed or scared due to the threat.
A civil harassment restraining order can’t apply if you are the spouse or the domestic partner of the victim. If the victim is someone you dated at some point, a civil harassment temporary restraining order will not apply. The victim should not be your close relative, including your child, parent, sister, brother, grandfather, grandmother, or in-law.
A temporary civil harassment restraining order prohibits the restrained person from contacting the victim or the victim’s family members. The order may also prohibit you from going near the victim’s children or other people who live with the victim. A civil harassment restraining order may affect your gun rights and could also have adverse immigration consequences.
When the victim goes to court seeking a temporary restraining order, the victim starts by filling out paperwork to inform the judge about what happened. If the judge believes that you could pose a risk to the victim, the judge issues a temporary restraining order.
Dependent Adult or Elder Abuse Temporary Restraining Order
It is an offense under California to subject a person of 65 years and above to abuse. The law also protects people between the ages of 18 and 64 who have certain physical or mental disabilities. According to the law, a victim is a dependent adult if his or her physical or mental disability prevents him or her from doing normal activities and defending himself or herself.
You could be guilty of elder abuse and get a temporary restraining order if your subject an elder or a dependent adult to:
- Physical abuse
- Financial abuse
- Abduction or taking an elder or dependent person to another location without his or her consent
- Other behavior that could lead to mental anguish, physical harm, or pain.
- If you’re a caregiver to an elder, you could be guilty of elder abuse if you deprive the elder of basic needs.
For the court to issue an elder abuse temporary restraining order, it should be evident that the victim is an elder of 65 or above. The restraining order may also take effect if the victim is a dependent adult of 18 to 64 years.
After the issuance of an elder abuse restraining order, the court may prohibit you from being the elder's primary caregiver. If you share the same residence with the elder or the dependent person, you might have to move out of the residence.
Issuance of a temporary restraining order against you could lead to loss of your gun rights. You might have to surrender your gun if you already own one.
Workplace Violence Temporary Restraining Order
The court may issue a temporary restraining order to protect employees from experiencing credible threats or unlawful violence. After the issuance of a temporary restraining order, the court may prohibit you from threatening or harassing an employee. The court may also prohibit you from going near or contacting the protected employee. A workplace violence temporary restraining order could also prohibit you from owning or possessing a gun.
An employer requests a workplace violence restraining order on behalf of his or her employee or employees. The order could also protect the employee’s close relatives or household members from violence. The court will only grant a workplace temporary restraining order if it’s evident that an employee faces credible threats of violence or unlawful violence. Unlike other restraining orders where the victim requests a restraining order, only the employer can request workplace violence restraining for his or her employees. An employee can't request a workplace violence restraining order on his or her own.
For the employer to get a workplace violence restraining order for his or her employee, the employer must prove several factors:
- The employee has experienced a credible threat of violence or unlawful violence, including stalking, battery, or assault.
- The credible threat of violence or the assault has a possibility of being carried out at the workplace or have previously been carried out in the workplace.
- The conduct of the defendant is not allowable as part of a legitimate labor dispute.
- The accused person or the defendant is not engaged in a constitutionally-approved activity.
After the issuance of a workplace violence temporary restraining order, the court might prohibit you from contacting the employee or family or household members of the employee. The order may require you to avoid going near the employee or the employee’s place of work.
The Process of Obtaining a Temporary Restraining Order in California
The first step, while applying for a temporary restraining order, entails filling some court forms. In the court forms, the victim fills the information informing the judge of the defendant's harm or risk. The victim does not incur any fee while filing restraining order forms.
The judge decides whether to issue a restraining order usually the next day or sooner. The judge may also reject the request and fail to issue a restraining order depending on the circumstances and the inherent risk.
If the judge agrees to issue a restraining order, he or she issues a temporary restraining order. A temporary restraining order lasts for around 25 days. The order is effective until the court date. In the court papers, the judge will indicate the court date. The temporary order documents may outline certain factors like child custody rights, who should use the family home, who can use other property. The order documents will also have a clause ordering the restrained person to stay away from the victim. The order may also instruct the restrained person to stay away from other household members and pets.
When the court issues the temporary restraining order documents, the victim has to serve the restrained person with the court documents. The defendant must receive the papers before the court date. The documents may be hand-delivered or mailed to the restrained person.
The restrained person has a right to file a reply to the restraining order document. In this document, the defendant explains his or her side of the story. Both the protected person and the restrained person have to appear in court at a later date.
If the protected person does not show up during the court hearing, the temporary restraining order expires on the court day. The temporary order will end, and the court will not issue another restraining order.
If the restrained person does not show up during the court hearing, he or she will not have a chance to explain his or her side. Therefore, the judge might go by the victim’s side of the story and extend the temporary order. The judge may issue a more extended restraining order known as a permanent restraining order, extending for up to five years.
During the court hearing, the defendant will have a chance to give his or her side of the story. With your attorney's help, you can try to convince the judge not to issue a restraining order.
After Receiving a Restraining Order Notice
After receiving a restraining order notice, you might overlook the importance of an attorney and choose to go it alone. Even if the law does not require you to have an attorney to respond to a restraining order, it's advisable to seek an attorney's assistance.
The court process might be complicated, confusing, and intimidating, especially if you've never been to court before. Both you and the protected person will have to meet in court, and each one of you will have to give his or her side of the story. Having an attorney guiding you makes the court process simpler and transparent.
Violating a Temporary Restraining Order
If you fail to abide by the requirements of a restraining order, you could be charged under California PC 273.6. Violating a restraining order is considered a contempt of court. For the prosecutor to prove that you have violated the terms of a restraining order:
- It must be evident that the court had issued a legal restraining order against you
- The prosecutor must also prove that you knew the restraining order
- The prosecutor must further prove that you intentionally and willfully violated the terms of the restraining order
It’s important to note that not all temporary restraining orders are valid. For instance, a restraining order is not valid if a court did not have the proper jurisdiction to issue the restraining order.
A defendant can't be guilty of violating the terms of a restraining order unless it's evident that the defendant was aware of the restraining order. The defendant is entitled to a notice of the restraining order and also an opportunity to read the restraining order.
The prosecutor will have to prove beyond a reasonable doubt that you violated the terms of the restraining order. You can violate the terms of a temporary restraining order by visiting the victim, sending text messages to the victim, or visiting the victim's workplace, among others.
In most cases, violating the terms of a restraining order is a misdemeanor offense, as outlined under California P 273.6. However, depending on your criminal history and the circumstances of your case, the prosecutor may charge a violation under PC 273.6 as a felony.
For a misdemeanor conviction of a violation of a restraining order, the penalties include a jail time that does not exceed one year in a California jail. If the victim suffers injuries as a result of the violation, you will be entitled to mandatory jail time of 30 days. The court may also require you to pay a fine not exceeding $1,000. The court may also require you to undergo mandatory counseling and domestic violence classes.
Subsequent violation of a restraining order is a wobbler offense. The prosecutor may charge the offense as a misdemeanor or a felony.
Legal Defenses to Violation of a Temporary Restraining Order
If the prosecutor accuses you of violating a temporary restraining order, you can adopt several legal defenses to fight the charges. Some of the applicable defenses include:
- Lack of intent
- Lack of knowledge
You can assert that you didn't know the restraining order. If you didn't receive a notice regarding the restraining order, you could state that you were not aware of it. The prosecutor has to prove that you received a notice of the restraining order.
If you did not intentionally or willfully violate the restraining order, you could fight the charges in court. For instance, you could have come across the protected person while shopping or while at a public place. In some instances, the victim may have initiated the conversation with you.
Find an Orange County Criminal Defense Attorney Near Me
There is still hope if your face charges for violating the terms of a restraining order. With the help of a competent criminal defense attorney, you can fight the prosecutor's allegations in court. An attorney can help you oppose the extension of a temporary/ permanent restraining order. For the best legal help, contact the Orange County Criminal Defense Attorney Law Firm at 714-740-7848 and speak to one of our attorneys.