How To Serve A Restraining Order

In the California legal organization, a restraining order is a court social club that forbids a specific person from

harassing,
abusing,
stalking, or
threatening

another person. The party that is protected is known equally the protected person. The other political party is known as the restrained person. Restraining orders are also commonly referred to as protective orders.

California law recognizes four types of protective orders. These include orders for:

domestic violence,
elderberry abuse or dependent adult abuse,
ceremonious harassment, and
workplace violence.

California protective orders can remain in outcome for upwards to five years. Some, though, will only exist valid for months or even days. Examples of these types of restraining orders include:

temporary restraining orders, and
emergency protective orders.

A violation of a protective order is a crime per California Penal Lawmaking section 273.6 PC. The criminal offence is charged as a misdemeanor (as opposed to a California felony or an infraction).

The criminal offense is typically punishable past:

imprisonment in the canton jail for up to one yr, and/or
a maximum fine of $1,000.

Note that almost restraining orders volition prohibit a restrained party from:

possessing,
owning, or
purchasing a firearm.

A violation of these gun prohibitions is another crime per Penal Code 29825 PC.

In this commodity, our California criminal defence attorneys will answer 6 cardinal questions:

person filling out restraining order form

Judges may issue terms to prevent a specific person from harassing, abusing, stalking, or threatening another person.

1. What is a restraining guild?

It is a court order that is designed to protect a person from another named party. In general, California'southward Lawmaking of Civil Procedure says that information technology can protect confronting:

harassment,
physical abuse,
stalking, or
threats of violence.¹

In addition, a protective guild can include terms for:

personal conduct orders – that end the restrained party from committing certain acts (e.1000., making telephone calls, harassing, threatening, destroying personal property, and assaulting the protected party).
stay-away orders – to proceed the restrained party a certain distance away from the protected political party, or his/her children, piece of work, abode, or some other specified identify.
Residence exclusion orders – that brand the restrained party move out from where the protected party lives.^two

ii. Are there different kinds?

California law recognizes four types of protective orders that protect against:

domestic violence,
elder or dependent adult abuse,
civil harassment, and
workplace violence.

2.one. Domestic violence

A person can ask for a domestic violence protective society if:

the restrained party has abused the person, and
the person has a shut relationship with the restrained party.ⁱⁱⁱ

A "close relationship" means that the two parties are:

married,
divorced,
separated,
domestic partners,
dating or used to date,
have a child together,
live together, or
are family members or in-laws.^iv

2.2. Elderberry or dependent adult abuse

A person can ask for an elderberry abuse or dependent corruption restraining order if:

the person is 65 years of historic period or older (or is between xviii and 64 years of historic period with certain mental and physical disabilities), and
the person is a victim of corruption, neglect, physical injury, or impecuniousness past a caregiver.⁵

2.three. Civil harassment

A person can ask for a civil harassment restraining order if:

the person is being harassed, stalked, driveling, or threatened by someone else, and
the person is not in a shut human relationship with the restrained party (as with domestic violence restraining orders).⁶

ii.4. Workplace violence

A person tin enquire for a workplace violence restraining club if:

the person is an employer, and
the person wishes to protect an employee from a credible threat of violence, firsthand danger, or corruption at the workplace.⁷

Annotation that an employee cannot ask for this blazon of society. If he/she wishes to protect him or herself at work from a co-worker, the party has to enquire for:

a civil harassment protective order, or
a domestic violence protective order (if the person is in a close relationship with the restrained party).

three. How long does a court social club last?

The maximum length of a restraining order is five years from the courtroom date or court hearing appointment upon which the society was issued.^eight

Note that a temporary restraining order, or "TRO," (run into Section half-dozen), may last but a few months. A temporary order is usually granted ex parte and prior to a permanent i.^nine

Farther, an emergency protective lodge, or "EPO," lasts up to five business organization days or seven calendar days.

Police enforcement and law officers can issue an EPO when responding to a domestic violence call. Police enforcement officers can issue the EPO if:

they believe a person requires immediate protection from another person, and
they contact a judge and get court approval for the EPO.¹⁰

Notation that protected parties can e'er try to extend an order if:

they feel threatened by the restrained party, and
the threat comes when the social club is about to expire.

4. What happens if a person violates the terms?

A violation of a protective order is a offense per California Penal Lawmaking 273.6 PC.

A prosecutor must prove the following to captive a person under this law:

a courtroom lawfully issued a protective club,¹¹
the defendant knew of information technology,
the defendant had the power to follow it, and
the accused willfully violated it.¹²

A violation of Penal Code 273.six is a misdemeanor in most cases.

The law-breaking is punishable by:

imprisonment in the canton jail for up to one year, and/or
a maximum fine of $1,000.¹³

Notation though that this crime becomes a wobbler if:

it is a defendant'due south second conviction for violating a protective gild, and
the violation involved an act of violence.¹⁴

A wobbler is a criminal offense that a prosecutor can accuse as either a misdemeanor or a felony.

If charged as a felony, the law-breaking is punishable by:

custody in state prison house for up to 3 years, and/or
a maximum fine of $x,000.

v. Tin a restrained party possess a firearm?

Near restraining orders prohibit a restrained person from owning or possessing a firearm for equally long as it is in upshot. They too by and large prohibit a restrained person from purchasing a gun.

A person that violates these prohibitions can face criminal charges per Penal Code 29825 PC.

6. How does a person get a restraining order?

A person can go to the California courts (usually Superior Court) and complete the necessary restraining order forms. Alternatively, the person's family police force or another attorney can consummate the forms. Information technology is deemed a type of self-assistance.

In the forms, the party seeking protection must describe why he/she is requesting protection from some other party. Once complete, the party files the forms with the court clerk and is obligated to pay a filing fee (unless a fee waiver applies).

A guess so reviews the forms and decides whether or not to issue a TRO. If issued, the order will normally last for 21 days.¹⁵

Following the issuance of the TRO, the courtroom will make up one's mind whether or non to make it permanent restraining club after hearing evidence on the matter. Prior to this hearing, a "notice of court hearing" must be given to the restrained party via a process server, and proof of service must be filed.¹⁶

If the evidence shows that the protected party warrants a protective order, the court bug one. Information technology and then remains in result for five years.¹⁷

vii. How do y'all challenge a restraining order?

The restrained party should hire a criminal defense attorney to challenge the order at the permanent restraining guild hearing. These hearings typically occur about 21 days after the TRO was issued.

At this hearing, the defense chaser can debate to the guess why the restraining order is unnecessary. The attorney can also submit prove and phone call witnesses. If the judge agrees with the defence force attorney, the TRO will expire. And it volition non exist converted into a permanent restraining order.

Note that if the judge does impose a permanent restraining order, the restrained political party may still be able to appeal information technology to a college courtroom.

8. What proof practise yous need for a restraining order?

California courts typically grant temporary- or emergency restraining orders based solely on the victim's allegations. But in gild to become an extended protective social club, victims are advised to bring the post-obit prove to the hearing:

angry or threatening voicemails, text messages, or emails past the adverse party;
eyewitnesses who heard or saw the agin party being violent;
photographs of any wounds the adverse party inflicted; and/or
any constabulary reports with descriptions of the adverse party's violence.

For legal representation…

Receptionist at computer with headset

For boosted guidance or to discuss your case with a California criminal defense attorney, we invite you to contact us at Shouse Constabulary Grouping. Our firm serves clients across the State of California including the Los Angeles area.

Legal References:

Source: https://www.shouselaw.com/ca/defense/laws/california-restraining-order/