WHAT IS A RESTRAINING ORDER?
by Jennifer Lawton, Divorce Attorney Fresno
Domestic Violence Restraining Orders are made to prevent further abuse. They are available to a party when he or she has suffered abuse or reasonably believes that he or she may be abused. Domestic violence is defined as abuse or threats of abuse between people who are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the victim and the abuser are closely related by blood or marriage. Due to the importance of a restraining order and the effect it will have on you, you should always seek the assistance of a qualified divorce lawyer fresno.
Abuse is defined as:
1. Physically hurting or trying to hurt someone, intentionally or recklessly;
2. Sexual assault;
3. Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone);
4. Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property; and
5. Abuse does not have to be physical. Abuse can be keeping you from freely coming and going. Abuse can be verbal (spoken), emotional, or psychological. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.
A domestic violence restrainer order can mandate that the abuser:
- Not contact or go near you, your children, other relatives, or others who live with you;
- Stay away from your home, work, or your children’s schools;
- Move out of your house (even if you live together);
- Not have a gun;
- Follow child custody and visitation orders;
- Pay child support;
- Pay spousal or partner support (if you are married or domestic partners);
- Stay away from any of your pets;
- Pay certain bills;
- Not make any changes to insurance policies;
- Not incur large expenses or do anything significant to affect your or the other person’s property if you are married or domestic partners; and
- Release or return certain property.
Once the court issues (makes) a domestic violence restraining order, the order is entered into a statewide computer system (called CLETS) to which all law enforcement officers have access. Your restraining order works anywhere in the United States. If you move out of California, contact your new local police so they will know about your orders.
A restraining order CANNOT: 1) End your marriage or domestic partnership. It is NOT a divorce; and 2) Establish parentage (paternity) of your children with the restrained person (if you are not married to, or in a domestic partnership with, him or her) UNLESS you and the restrained person agree to parentage of your child or children and agree to the court entering a judgment about parentage.
The consequences of having a restraining order can be very severe. It may result in criminal and civil liability, a presumption that the abuser should have no custody of their children for five years, no ability to contact the other party, loss of the right to own a firearm, etc. A Domestic Violence Restraining Order may also have serious repercussions to a party’s professional career, including loss of employment, security clearances, and professional licences. In addition, a party will most likely have to disclose the existence of the order on applications for employment, professional licences, and insurance.The restraining order may also affect the abuser’s immigration status.
Types of Domestic Violence Restraining Orders
- Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night. The EPO starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.
- Temporary Restraining Order (TRO)
To get an order that lasts longer than an EPO, you must ask the court for a TRO. A TRO usually last between 20 and 25 days, until a court hearing date.
- Permanent Restraining Order
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a permanent restraining order. They are not really permanent because they usually last up to 5 years. At the end of those 5 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.
- Criminal Protective Order
Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.