In California, a restraining order is a court order issued by a judicial officer (judge, magistrate or referee) that is obtained by a purported victim (the “petitioner”), or by a police officer or sheriff’s deputy on behalf of him or her, against an individual (the “respondent”) to prohibit – and ostensibly to prevent – that individual from engaging in one or more or even all of the following activities in regard to this victim:
physical or psychological/emotional abuse;
Stalking (California Penal Code section 646.9);
Making a Criminal Threat (California Penal Code section 422).
Terms of Restraining/Protective Orders
The precise acts prohibited and proscribed by the order will depend on the specifics of each case; however, it will always include a term that prevents you from contacting the purported victim. And a no-contact prohibition will always – either explicitly or implicitly – include the following forms of communication:
- face-to-face (person-to-person) contact;
- telephone contact;
- email messages;
- social media postings;
- letters; and
- contact through third parties acting on your behalf.
Please note that once such an order has been issued by a court, the petitioner or purported victim is thereafter known as the “protected person” and you will be known as the “restrained person”.
Notwithstanding, most orders will also require you to surrender any and all firearms you own, control or possess.
Finally, if you are actually restrained – i.e., prohibited from doing something or going some place – then the specific terms of the order (sometimes also referred to as a “protection order” or “stay-away order”) may require you to:
- keep a certain distance away from the purported victim;
- move out of your own house;
- avoid contact with your own child;
- alternatively, have only minimal or supervised contact with your child.
Operative Laws and Codes
California’s laws regarding restraining orders, stay-away orders, and protective orders are among the most stringent in the United States. Indeed, the state laws pertaining to these orders number in the dozens, are often complicated and technical, and are spread throughout numerous codes, including but not limited to the following:
- the California Penal Code;
- the California Code of Civil Procedure;
- the California Family Code;
- the California Welfare and Institutions Code; and
- the California Evidence Code.
Similarly, California strictly honors and enforces identical and similar orders from the remaining forty-nine states so long as that particular state provides due process to individuals against whom the specific order is sought, and that that particular court had jurisdiction over you in that state.
California exercises this authority pursuant to Family Code section 6402(e), as well as the federal government’s “full faith and credit” law, which is codified at subdivision (a) of Section 2265 of Title 18 of the United States Code – 18 U.S.C. § 2265(a).
Fortunately for defendants, however, California provides numerous substantive and procedural safeguards for individuals facing the prospect of having one of these orders issued against them, or for persons who have been convicted of some type of crime that resulted in them being subjected to such an order. As you’ll learn after reading the material below, it pays to have a highly experienced attorney representing you at every stage of this process.
Conversely, the state superior courts in all fifty-nine counties have made it extremely simple for a purported victim to obtain a protective order without an attorney. For example, in Los Angeles County, step-by-step guides for “petitioners” (i.e., persons who wish to obtain a restraining order) are available to the public on the LA County Superior Court’s website. See, e.g., courts.ca.gov.
Moreover, as discussed below, California law allows law enforcement officers to immediately obtain one on behalf of the purported victim.
Keep in mind that if criminal charges are brought against you but are later dismissed, any restraining order against you will also likely be dissolved. That is, of course, unless maintaining it is part of a plea deal that resulted in your dismissal.
In sum, and in light of the highly complicated nature of these state laws, trying to defend yourself against a restraining or protective order is tantamount to blindly running through a mine field – you’re bound to make a costly mistake that can and will affect for anywhere from five days up to ten years of your life.
Even worse, once an order has been issued against you, and you violate it – even inadvertently or intentionally, you can be charged with a new/additional crime or crimes. Those, in turn, can land you in jail or even prison (see below).
Types of Restraining and Protective Orders
Restraining orders in California cover a number of different laws and time periods, but the most common include the following:
Emergency Protective Order
When a law enforcement officer has “probable cause” to believe that an individual’s safety is threatened by you (because of your alleged actions and/or threats), then he or she can immediately have a judge issue an emergency protective order (“EPO”) against you. The officer does this by calling a judge literally any time day or night, 365 days a year, and explaining why the EPO should be issued. (The officer must be able to articulate – i.e., state all the facts in detail – that establish probable cause.)
The judge will then issue the order, which instantly goes into effect and lasts for the shorter of seven calendar days or five court days (i.e., days when the court is in session; thus, excluding weekends and holidays), pursuant to California Family Code section 6256.
The petitioner can then go to court to request that the judge extend the EPO.
In April 2020, in an effort to curb the spread of COVID-19 (by limiting courtroom and courthouse traffic), the Judicial Council of California (which works with the Chief Justice of the California Supreme Court to set policy and rules for all state superior courts) issued an order extending the typical duration of EPOs from seven days to thirty days.
Temporary Restraining Order
Under California Code of Civil Procedure section 527.6, anyone who has allegedly suffered harassment – whether civil or criminal – can obtain a temporary restraining order (more commonly known as a “TRO”) against you. He or she merely needs to convince the judge that you have recently engaged in a pattern of harassment (which can include many different activities, including stalking) for the sole purpose of bothering or alarming you.
TROs are granted on an emergency-only basis so the purported victim will also have to convince the judge that you – through your words and/or actions – made or pose an imminent threat of violence, either to that person or a member of his or her immediate family.
In addition, this “credible threat” must have been so dire that any reasonable person would have been placed in fear and that it actually did place the petitioner in fear for his or her own safety (or of a close family member’s safety).
But keep in mind that he or she need not have suffered any physical harm, much less a visible injury, for the judge to grant the petitioner’s request for a TRO. Because the order is only temporary, and because the possibility of physical or mental suffering to the petitioner far outweighs your legal rights (at least at this stage in the process), the legal threshold for issuing TROs is very low.
In fact, the law allows a petitioner to rush into court as soon as the morning after the alleged incident to request a TRO – even if you didn’t receive any notice of the hearing. If the judge grants the request (or “petition”), then he or she will immediately:
issue the restraining order, which will last for twenty-one days;
schedule a second hearing (to be held in twenty-one days) to determine if a more permanent order should be issued; and
have the order entered into various databases that are accessible to all law enforcement personnel (see below).
As the restrained person, you must be served with written notice of the hearing, as well as a copy of the TRO, which will include the protective terms therein.
As with EPOs in response to the coronavirus pandemic, the duration of TROs were extended from twenty-one days to ninety days before the second court hearing for a possible “permanent” restraining order (see below).
“Permanent” Restraining Order
At the subsequent hearing, the judge will decide if the evidence merits the issuance of a new protective order; otherwise, he or she will dissolve the TRO. The term of the “permanent” order can last up to five years or even ten years (see below), pursuant to California Family Code section 6345.
Also, the permanent R.O. (which is sometimes referred to as an “injunction”) will contain the exact same terms as the TRO except, of course, for the order’s duration, pursuant to California Family Code section 6384.
Notably, if the permanent R.O. was issued after criminal charges were filed against you, it will also be known as a “criminal protective order”.
Domestic Violence Restraining Order
Known as a “DVRO”, this is an order that, not surprisingly, is issued in a domestic violence case to protect the purported victim – either before or after a conviction is secured against the restrained person. The two most common criminal charges involving domestic violence in California are:
Domestic Battery under California Penal Code section 243(e); and
Infliction of Corporal Injury Upon a Spouse, Cohabitant, or Fellow Parent under California Penal Code section 273.5.
(Both of these statutes are discussed in great detail below.)
The duration of these orders can range from as little as five days to as long as ten years, depending on the facts, circumstances, and nature of the current or prior convictions (if any) against you.
The parties in a DVRO – again, the petitioner/protected person and you, the respondent/restrained person – must have previously been, or are currently in, some type of romantic or domestic relationship. This is known as a “qualifying relationship”, as set forth in the state’s domestic violence statutes, which are codified in California Family Code section 6211.
Specifically, this personal or intimate relationship must fall into at least one of the following categories:
you and the purported victim are or were sexually involved (a “dating” relationship);
are or were living together (either romantically or platonically);
are or were married (the latter meaning that you are currently separated or divorced);
are or were engaged to be married;
you have one or more children together; or
you are closely related (i.e., one of you must be a parent, grandparent or sibling to the other).
As indicated above, a DVRO may issue against you even before you are convicted – or, indeed, even charged with a crime; nevertheless, the judge issuing the order must be convinced that there is evidence of domestic abuse or potentially imminent domestic abuse (including a legitimate threat of abuse or violence) against the purported victim.
Batterers’ Intervention Program
Further, virtually every DVRO – if it’s a “permanent” R.O. – issued in LA County will require you to successfully complete a 52-week batterers’ intervention program, which is done through the county’s probation department. (Because of COVID-19, these educational courses and group & individual counseling sessions are now held only online.)
If you’re convicted of either a misdemeanor or a non-prison-sentence felony, you will almost certainly be required to complete this program (within the first year-and-a-half of your three-years’-minimum probationary period).
Out of all the different types of protective orders available in California, none carry as potentially serious consequences as DVROs, as discussed below.
Elder Abuse Restraining Order
This is a specific type of DVRO that applies to purported victims who are at least sixty-five years old, and which are protected by California’s Elder Abuse statute, codified at California Penal Code section 368.
This statute, as well as the specific type of R.O., also apply to “dependent” adults (of at least eighteen years of age) who are unable to care for themselves or capable of asserting their own legal rights. This includes adults who are hospitalized, institutionalized or in a rehabilitation center. (The reason dependent adults fall under the elder abuse category is that both classes of victim are covered by this statute.
Unlike other types of DVROs, elder abuse restraining orders can be issued even without any evidence of physical abuse – specifically, they can be issued if there is the actual or threatened possibility/likelihood of financial abuse, desertion or neglect.
Defenses to Restraining Orders
You should never try to represent yourself as a respondent or defendant at a hearing for any type of restraining order, whether it’s the TRO, the permanent R.O. hearing, or any other proceeding. You will almost certainly say things to the judge (that will probably be recorded by a court stenographer) that will not only be used against you by the prosecutor to obtain the order, but also as evidence against you for pending or anticipated criminal charges!
On the other hand, having a highly experienced and skillful lawyer defending you can – and often will – make all the difference. For example, at these hearings, your attorney can present evidence that not only directly contradicts the testimony of the petitioner (if applicable), but even proves to the court that you were, for example, acting only in self-defense (again, if applicable).
Also, by having your attorney speak on your behalf (and possibly negotiate a favorable compromise or plea with the prosecutor), you can avoid making incriminating statements that would otherwise help the District Attorney’s Office (felonies and misdemeanors) or City Attorney’s Office (misdemeanors only) secure your conviction.
Your defense counsel might even be able to get the order dissolved on technical grounds; for example, you never received proper notice of the injunction hearing. These technicalities always favor the respondent/restrained person and can be an effective means of protecting your legal rights.
In the event a TRO or even a permanent R.O. is issued against you, your attorney can later present evidence to the court that there has been a material change in either your circumstances or the protected person’s that warrant a rescission of the order. Or other facts or new evidence may have arisen, or even a change in the law has occurred, which your lawyer can use to convince the judge to rescind.
In sum, your lawyer can successfully argue that because of these new circumstances, justice would be best served if the court immediately dissolved the order (or at least modified it in your favor), pursuant to California Code of Civil Procedure section 533.
The Los Angeles Criminal Defense Attorney Law Firm
Since 2005, Ninaz Saffari, the managing attorney of the Los Angeles Defense Attorney Law Firm (LADALF), has represented many hundreds of defendants in cases alleging domestic violence, elder abuse, and battery charges. She also defended many of these clients before superior court judges in TRO and permanent R.O. hearings with great success, including during every step of the restraining order process.