A victim can pursue a permanent restraining order to make sure their abuser stays away from them. Before the court grants a permanent restraining order, it considers many factors to gauge the suitability of the order. Some factors include the danger the defendant poses to the victim. Before imposing a permanent restraining order, the court must allow the defendant to present their defense. A permanent restraining order can be limiting and stressful. For example, if you share a residence with the victim, the court will order you to vacate the shared premises when the order takes effect. You must also avoid going close to the victim, including visiting the victim's workplace. If you receive a notice of a permanent restraining order against you, our reliable attorneys at the Pasadena Criminal Attorney can help. We will evaluate the allegations against you and help you fight your accusations.
Permanent Restraining Order Explained
Only a California judge can issue a permanent restraining order. This is the most severe restraining order and has the most severe repercussions. The victim can petition the judge to issue a permanent restraining order against their abuser to ensure that the abuser no longer bothers the victim. However, before the victim presents their case in a courtroom, the victim must meet several prerequisites.
There are several types of restraining orders that could protect a victim from abusive acquaintances or abusers in the workplace. A domestic violence restraining order protects the applicant from people in their inner circle, usually relatives or lovers. This restraining order revolves around the most intimate relationships.
Given the intricate nature of permanent restraining orders, they should be judged impartially. You require the services of a legal expert to help you present the full picture of your case before the judge grants an order against you. The judge's ruling will depend on how convincing your attorney is.
Permanent Restraining Orders Are Common In Domestic Abuse Cases
The judge will make sure that the victim's depiction of the abuse conforms to the law before determining whether to impose a restraining order against the abuser. The abuse must conform to the laws that define the characteristics of domestic abuse. According to the law, the victim could be undergoing sexual abuse. The abuse could also encompass physical harm, which was caused deliberately or allowed to occur through reckless conduct. Even if the abuser only attempted to harm the victim, it could count as a form of abuse even if physical harm never resulted. Permanent restraining orders can apply even for threats of physical harm. A victim can seek a domestic violence restraining order even if the abuser did not inflict physical harm.
Abuse can also be defined as a conduct that is threatening, like destruction of property, harassment, or stalking. The law also allows the victim to file for a restraining order if the alleged abuser has disturbed their peace. Disturbed peace is a purposefully vague condition that constitutes several behaviors. The victim could have a case if the abuser has committed any acts that threaten their well-being.
Other Types Of Domestic Violence Restraining Orders
Apart from a permanent restraining order, the judge could grant other types of restraining orders depending on the facts of the alleged abuse.
Emergency Protective Order (EPO)
The only order that does not have to be provided by a judge is the emergency protective order. Any qualified law enforcement officer can provide this order if the officer feels that a case deserves it. Law enforcement officers are allowed to break this tradition because the judges are usually not out in the field to observe crimes. These officers can determine if the situation is so dangerous that immediate action is required.
However, emergency protective orders do not last long because law enforcement officers have lesser purview regarding life-altering decisions in California and the entire U.S.A. An emergency protective order lasts for one week. The victim must go to court within that period to take the next step to remain protected from the abuser.
Securing an emergency protective order is not an essential prerequisite to obtaining a permanent restraining order. The law enforcement officer will provide a victim with an emergency protective order before the victim proceeds to court.
Temporary Restraining Order (TRO)
Only judges can grant temporary restraining orders. They are the next step of escalation when it comes to domestic abuse restraining orders and normally last longer than emergency protective orders. The victim does not need to have been granted an emergency protective order to obtain a temporary restraining order. An applicant only needs to go to court and complete the necessary paperwork to get these restraining orders.
The judge does not need to set a hearing to grant a temporary restraining order. He/she will only review the provided paperwork within one day and make a final judgment. The judge will grant a temporary restraining order if the stated case seems worthy of the order. On the other hand, the judge will deny your request if your case is not worthy of a temporary restraining order.
The victim can fill out and submit the paperwork again if the initial request is not granted. The temporary restraining order is only meant to be a stopover on the way to a permanent restraining order, even if it lasts for 30 days. Both the victim and the alleged abuser will be summoned to court within 30 days to give their respective sides of the case.
Criminal Protective Order
The court could issue a criminal protective order against an alleged abuser in extreme cases. Most situations of domestic abuse do not involve crimes, but some of them do. If the police arrest you for causing harm to your spouse, the court could order you to stay away from the victim with a criminal protective order. A criminal protective order remains in place until you are brought to trial. This order has no set expiry date. The criminal protective order could last another three years if you are convicted. The victim can petition for a permanent restraining order after a criminal protective order runs its course.
An applicant must not undergo a complex procedure to secure a criminal protective order. If you have committed a crime against the victim, this is enough evidence that the judge will use to label you a threat. The order will make it unlawful to have any contact with the victim.
The Procedure For Securing A Permanent Restraining Order
The victim must go to court to secure a temporary protective order, whether an emergency one is in place. Securing a temporary protective order will enable the applicant to proceed with seeking a permanent restraining order.
The defendant and the victim will be notified of the court date once the petition for a temporary protective order has been accepted. The court will require both parties to appear before the judge on the scheduled date. However, the case will continue if the alleged abuser does not show up in court. Therefore, if you receive a notice of a restraining order hearing, failing to attend the hearing will be an advantage to the victim.
When you attend the court hearing with your attorney, you can tell your side of the story. By presenting mitigating evidence, your attorney can convince the judge not to grant the permanent restraining order. However, you will relinquish this right if you fail to honor the court date. If this happens, it could be the victim's big chance to monopolize the judge's ears with details of the alleged abuse. The judge will issue a permanent restraining order against you if the court decides the victim's petition is valid. Your conduct will continue to be restrained in the same manner that was under the temporary restraining order.
The Conditions For Securing A Permanent Restraining Order
The victim and the alleged abuser must have a verifiable relationship for a petition for a permanent restraining order to go through. The restrained individual must have also committed certain unacceptable acts. The judge will only consider the order if the person to be restrained meets the following conditions:
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Must have abused you or threatened to do so
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Be in an intimate relationship with the victim. An intimate partner could be a close relative, a person with whom the victim has a child, a former or current cohabitant, a current or former boyfriend or girlfriend, a divorced partner, or a spouse.
The victim can file for a permanent restraining order if the alleged abuser meets all of the above conditions. If the abuser does not meet the above conditions, the victim can file for another type of restraining order provided under California law.
After The Court Hearing
Once the court issues a permanent restraining order, it will serve the victim and the defendant with copies of the order for reference purposes. Both parties will have a chance to ask questions if needed. The victim can call the police if the alleged abuser breaches any of the terms of the order. Protected victims have the right to police protection if the situation warrants it, particularly if the restrained person contacts them.
Whether A Permanent Restraining Order Can Be Filed For A Child
An adult can file a permanent restraining order for their child if the child has not yet attained the age of 18. A parent can represent their child in court or hire an attorney for them. The child can file for a permanent restraining order when he/she reaches 12 years old or older. However, the law allows parents to perform this function for their children until the child becomes a legal adult.
The Effects Of A Permanent Restraining Order
The major role of a permanent restraining order is to make an abuser stay away from the victim. However, simply stopping physical contact is not sufficient to make sure that the alleged abuser does not have any further impact on the victim's life. A permanent restraining order can also do the following apart from disallowing contact between the victim and the abuser:
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Returns some personal property to the victim; the property must have been mentioned in the details of the permanent restraining order.
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Prohibits the abuser from making any investment or spending decisions that could cause harm or otherwise impact the shared financial situation
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Prohibit the restrained person from making any changes to shared insurance plans.
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Orders the restrained person to transfer the ownership of cell phone plans shared to the victim's name.
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Ensure the restrained person fulfills child support, partner, or spousal court orders.
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Order the alleged abuser to find another place to reside if he/she is staying in the victim's home.
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Demand that the alleged abuser stays away from the victim's place of residence and work and that he/she does not go near the children's school
The legal system will ensure it protects the victim from any harm the abuser could try to inflict by combining all the above effects. Judges know that physical distance alone is not sufficient. They ensure that action is taken to minimize contact between the victim and the restrained person.
Other Effects Of A Permanent Restraining Order
The judge can impose a permanent restraining order on an alleged abuser by considering the circumstances that warrant it. A permanent restraining order can have far-reaching effects that can make life unbearable. As a restrained person, you can find it challenging to secure employment. You might also incur hefty legal fees while fighting against the restraining order. Prospective employers often access the National Crime Information Center registry that catalogs offenders of all sorts of offenses, including people with restraining orders.
Hiring agencies avoid individuals deemed a significant threat to other people's safety. Most hiring agents avoid candidates with criminal records or restraining orders altogether. When there is a restraining order against you, you might not be allowed to work for the government in any capacity and occupations like teaching, pharmacy, psychotherapy, or nursing.
Similarly, a person with a permanent restraining order is not allowed to foster or adopt any child even if the person cleans up their act after the fact. If you are already working, you could be expelled from your job, particularly in school. You cannot vie for any elected office without a permanent restraining order against you. A permanent restraining order can also come with the following restrictions:
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Being denied the right to stay in the country
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Being barred from game hunting
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Being barred from possessing or buying a gun
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Being denied housing
Whether A Person Under A Permanent Restraining Order Is Allowed To Own A Gun
Making it illegal to possess a gun is one of the most notable effects of a permanent restraining order. Your right to possess a gun is enshrined in the Second Amendment of the U.S. Constitution. However, this right does not apply to individuals deemed dangerous to society. You can be ordered to relinquish any guns once a permanent restraining order is issued.
You will be required to surrender the weapon to law enforcement or a state-recognized gun dealer. The authorities added this measure to the restraining order statute to better protect the safety of the protected person.
What Can a Permanent Restraining Order Not Do?
The legislatures in California have done everything possible to make a permanent restraining order as strong as possible. However, there are certain aspects of your relationship with the victim that a permanent restraining order cannot sever. For example, this restraining order cannot divorce you from your partner. A permanent restraining order cannot nullify your marriage. A restraining order cannot deny you parentage rights to your kids. If the victim wants to withhold the children from you, he/she will have to pursue this process in another setting because a permanent restraining order does not rule on this matter. Additionally, a permanent restraining order is also limited in its period. When the validity period lapses, a restraining order is no longer effective.
Whether A Permanent Restraining Order Is Truly Permanent
A permanent restraining order is not permanent because the court makes it and often lasts five years. However, the law allows the victim to apply for a restraining order renewal once the five years elapse. The victim can do this if he/she still feels that the alleged abuser poses a threat to them, their children, housemates, or immediate family members.
The Consequences For Violating A Permanent Restraining Order
It is a crime to violate the provisions of a permanent restraining order. The punishment the court can impose varies depending on several factors. The judge will interpret the law to its most onerous extent if you have a criminal history. However, the judge could be more lenient in the case of a first violation. The judge can rule the infraction as a misdemeanor or felony in the case of any violation of a permanent restraining order. The possible penalties range from a minor fine to a jail term that does not exceed three years in a state prison. If you violate a restraining order several times, the court will consider subsequent violations felony crimes.
What Amounts To A Violation Of A Permanent Restraining Order
If you violate the conditions of a permanent restraining order, the judge can consider the action a violation of the restraining order. However, a violation can only be valid if you know that there was a restraining order against you. You must also have understood the conditions of the permanent restraining order.
On the other hand, the judge who imposed the restraining order could have made mistakes during the filing process. In this case, the actions that could have been deemed violations will not be judged violations. You must have passed an assessment determining your ability to comply with the conditions of the restraining order. For example, you could be mentally unfit. The judge will consider this when determining whether an action involves a willful restraining order violation.
Whether A Permanent Restraining Order Can Be Amended
A permanent restraining order clearly outlines what the victim is being protected from, down to the most delicate details. However, the victim can request to have this decree amended to include more provisions. The judge presiding over the case will review and rule for or against the request. For example, the judge would be inclined to rule in the child's best interest if the restraining order covers children.
The defendant can also file a petition to modify the permanent restraining order. The judge will similarly review the petition based on the evidence tabled before the court. Judges can modify restraining orders without exposing the victim to danger if there is enough evidence. For example, the judge can amend a restraining order to allow you to access the children under supervised visitation.
Sometimes, the judge decides the permanence of the permanent restraining order, and it normally takes the period granted by the court. Therefore, a permanent restraining order does not often cover the protected person's lifespan. The judge could lift this order once the restrained person has completed rehabilitation classes. The restraining order can be lifted if there is enough evidence of a behavior change. However, the judge can only amend a restraining order with the victim's permission and must ensure public safety.
Find a Reliable Criminal Attorney Near Me
Having a permanent restraining order against you can be detrimental. It would mean that you are no longer free. You might lose access to the home you bought or constructed with the victim. The judge can restrict you from visiting certain locations, such as the victim's workplace, school, or other places where you are likely to meet the victim. You should not give up without a fight when you receive a permanent restraining order notice.
After receiving a restraining order notice, you should contact a criminal attorney who understands permanent restraining orders. With the help of your attorney, you can present mitigating evidence during the restraining order hearing to prove why the order should not be enforced against you. At the Pasadena Criminal Attorney, we have experienced attorneys who understand all aspects of restraining orders. When you contact us, we will work with you and devise the best possible defense strategy to fight against the restraining order. Contact us at 626-689-2277 to speak to one of our attorneys.
