Restraining orders (ROs) are instruments designed by the California justice system to protect victims of domestic violence (DV) from abuse, harassment, or threats. The ROs are issued based on the gravity of the urgency and the relationship between the persons involved. In domestic violence cases, temporary restraining orders (TROs) are issued by a court to deter the recurrence of the violence pending a court hearing to determine whether the victim requires protection.

When the court issues these orders against you, you must adhere to the set conditions; otherwise, you risk charges for RO violation and permanent restriction. Unfortunately, the RO terms can be confusing, particularly if you live in the same house as the protected party. Talk to an experienced RO attorney to explain the orders and prevent a violation. At Goldman Flores Restraining Order Law Firm, we can help you with your TRO issue, whether seeking protection or challenging a TRO in San Diego, CA.

Understanding ROs

Restraining orders are also called stay-away or protective orders. DV victims obtain these orders against their victimizer. They prevent the restrained party from acting on their threats or abusing the victim further. The common parties who petition the court to issue DV protective orders against you include:

• Your current or ex-spouse
• Current or former romantic partner
• Existing or former cohabitant
• Registered domestic partner
• Your children or grandchildren
• Any other family member

TROs Overview

ROs come in tiers. Tier one is for emergency restraining orders (EROs), tier two is for TROs, and tier three is for permanent restraining orders (PROs). To understand TROs better, you should recognize the sequences. EPOs are issued immediately by a judge on standby upon request by officers responding to a DV incident. The orders go into effect immediately and stay in effect for up to one week, sufficient to allow the protected party to request the court to sustain the restriction.

TROs come after the expiry of the EPOs. Unlike an EPO, which the responding police officers request on behalf of the victim, TROs are issued by the court after a request for sustained orders by the victim. You, the restrained party, are not required to respond in this hearing. The judge only reviews the applicant’s petition and affidavit and grants a TRO immediately based on the threat the victim faces. The orders only temporarily protect the protected person from the restrained party until the court evaluates the matter closely in a hearing attended by all parties to find a lasting solution.

The court grants PROs after listening to all parties and reviewing the evidence presented. The orders can last at most 60 months, although they can be extended further, if necessary.

Because the court never notifies you of a TRO application by the victim, it is tough to contest one. After receiving the orders, the only action you can take is to study the conditions carefully to prevent a violation within the period it remains in effect. The standard TRO terms are:

• No contact with the restrained individual
• Keep a certain distance away from the victim
• Avoid activities or places you shared with the victim
• Mandatory enrollment in anger management sessions
• Giving the petition temporary child visitation or custody
• Enrolling for counseling programs, like the batterer’s treatment
• Reimbursing the petitioner's attorney fees
• Compensating the victim for damages stemming from the DV incident
• Giving the victim temporary ownership or possession of jointly owned assets
• Avoid any threats of harassment, abuse, stalking, or sexual assault against the petitioner
• Restrain from injuring or taking animals

Compliance with these terms protects you from RO violation charges.

Primary Forms of California TROs

California statutes differentiate protective orders contingent on the existing relationship between you and the protected individual. Every protective order type seeks to address the threats or injuries that could stem from a specific relationship. When the victim files for protection under the wrong category, the court will dismiss their petition, resulting in the loss of temporary protection. Again, violating any of these orders could trigger a civil or criminal proceeding and possible conviction. The common TRO types are:

Domestic Violence Temporary Restraining Orders (DVTROs) 

California Family Statutes govern DVTROs and apply to individuals with close or intimate relationships. The orders apply to close family members like parents, siblings, and children. Additionally, people with intimate relationships such as marriages, romantic relationships, and cohabitation. The law is not concerned with whether the intimate relationship is current or ended. DVTROs give judges broad mandates. Judges can order restrained parties to pay child or spousal support, based on the circumstances. Further, they can take away child custody or visitation.

Civil Harassment Temporary Restraining Orders (CHTROs)

The court issues CHTROs where the protected and restrained individuals have no romantic or close relationship. They apply in conflicts involving neighbors, colleagues, friends, or distant family members, like cousins. The purpose of CHTROs is to prevent harassment. Acts that comprise harassment are the illegal use of violence, making credible violence threats, or intentionally engaging in unlawful behavior targeting a given party to annoy, harass, or cause fear.

DVROs and CHTROs differ in terms of the evidentiary standard. In DVTROs, the court requires the victim to prove with a preponderance of evidence that PROs are necessary to avert further harm, which is an easy standard for the victim to satisfy. In CHTROs, the evidentiary standard is higher for a PRO to be granted; the evidence submitted must be clear and convincing. Therefore, the relationship between parties determines the order type, while the categorization determines the evidentiary standard in the final proceeding. When a petitioner wants to restrain a neighbor, the evidentiary burden will be greater than that of a party who wants protection against an intimate person or close family member.

Workplace Violence Temporary Restraining Orders (WVTROs)

WVTROs tackle workplace violence to safeguard workers from the use of physical force or violent threats from coworkers. In these cases, the employer is the petitioner and seeks protection for one employee from another.

Leaving the Family Home After a TRO

DVTRO can require you to leave the shared or family home and find a place to live temporarily in certain situations. The court can instruct that you move out of the shared home if it reasonably believes you are an imminent danger to your spouse, children, or siblings.

Move-out orders take effect immediately. You cannot return to the house for whatever reason until the judge resolves the matter in the final court hearing. Before imposing this restriction against you, the judge evaluates the case’s facts in the final proceeding. If you engaged in a TRO violation, the court will issue PROs, which can be life-changing.

Duration of TROs

TROs remain in effect for up to 25 days to keep the petitioner or victim safe until the judge finds a lasting solution in the final court hearing. The judge schedules this hearing within three weeks of issuing the TROs. In the proceeding, the petitioner presents evidence and witnesses in favor of the PRO. You, the victimizer, will also have the chance to contest the evidence presented against you. The judge gives final orders regarding the victim’s protection in this hearing. If the order is unfavorable, you must make many adjustments to ensure compliance for five or more years. Therefore, consulting with a profound RO attorney for proper preparations for this hearing is crucial. An attorney will gather evidence to poke holes into the petitioner’s evidence, leading to the lifting of the orders.

If the judge rules in your favor to terminate the TRO, it will expire within 12 to 25 days, and you will resume your original life before the restraint.

The Process of Obtaining a TRO

ROs are judicial system instruments for immediate protection to victims. Therefore, the process of obtaining one is not complicated. The steps a petition follows to secure a TRO against you are:

1. Completing the Paperwork

When the protected party must appear in court before the end of seven days, which is the duration EPOs stay in effect, the protected party must fill out the paperwork for a temporary stay-away order. The court does not automatically issue TROs, so a petition with the evidence attached must be filed. After submitting the paperwork, the court clerk gives the petitioner a court date for a final hearing. However, if you still pose a danger to the victim and they can prove there is a need to sustain the protection, the court grants a TRO, which is enforced until it lapses or the case is resolved through a hearing.

2. Granting the TRO

When the clerk receives the petitioner’s application, the judge studies it and decides whether to grant a TRO on the same day. If the affidavit and supporting evidence show the need for sustained protection until a final order is issued, the court grants the petitioner the TRO request. A TRO imposes several conditions that you must abide by. The challenge with TROs is that the court can issue the order in your absence or without notifying you, making compliance difficult. However, there are mechanisms to ensure you are served with the orders and the conditions.

3. Serving the Restrained Person with the TRO

Once the petitioner secures the TRO, the court makes it mandatory for them to properly serve you a copy of the same and the court date. If you are not properly served, the court will rule in your favor in the final proceeding, and any charges against you for the RO violation will be dropped for improper service.

The protected person should not serve you with the papers. They should rely on any other party, like a friend, coworker, the sheriff, relative, or an expert process server, if they are above 18. When the TRO is served through mail, by the petitioner or a party under 18, it will be invalid, and the final order will be in your favor.

The court sets deadlines for service. The petitioner must send a copy of the TRO and other court documents five days before the expected court date. The service is intended to inform you of the formal petition against you and the conditions of the temporary protective orders.

The TRO can only be enforced if you are personally served. So, if there is a way for you to evade it until the 21 or 25 days end, it will expire, leaving the petitioner with no protection. However, when the judge establishes that you are intentionally evading service, they will assume you have been served and go on with the hearing if there is proof of diligent service efforts by the petitioner.

Alternatively, you can be served through a newspaper publication. When service is done the right way, review the TRO copy carefully. It contains the date and time of the final proceeding, what is expected of you, and all the paperwork filed by the protected individual in court. You have ten to twenty days before the final decision to respond to the petition. After service, the petitioner must file proof of service by retrieving and filling out the relevant documents.

The best action you can take after service is to contact an experienced RO attorney to review the TRO and explain the best legal course.

4. The Final Court Proceeding

The judge issues the final orders on the petition against you after reviewing evidence, witness testimonies, and arguments from both sides. You will receive a PRO when the petitioner shows that you performed an act that could reasonably cause the victim to feel threatened or adversely affected by your threatening conduct.

The evidence the victim presents supporting the petition includes physical evidence, digital communication, and witness testimony. Physical proof includes:

• Images of the injuries suffered by the victim
• The report from the responding police officers
• Property damage documentation
• Medical records

Digital proof that can support the petition includes:

• Printouts of threatening text messages from the restrained party
• Threatening emails
• Threatening social media posts
• Use of abusive language
• Evidence of a harassment pattern

Witness testimony encompasses the accounts or statements from the persons present during the DV incident. The TRO will become permanent if the evidence submitted shows probable cause for continued victim protection in the long run.

TPO Violation

Per PEN 273.6, it is a misdemeanor offense to contravene a valid protective order. A second violation is a wobbler. The prosecutor can file misdemeanor or felony charges depending on the case’s facts.

The elements of the violation that the prosecutor must demonstrate are:

• The court legally granted the petition a written protective order
• You were aware of the existence of the order
• The court conditions were enforceable, or you had the capacity to adhere to them
• You willfully contravened the orders

When proving knowledge of the existence of the RO, the prosecutor must prove that you had the chance to read the orders, even if you decided not to read them. Again, the violation must have been intentional. An accidental breach will not result in a conviction.

TRO Violation Legal Penalties

Studying the TRO conditions after services is critical because it minimizes the chances of a violation. That way, you avoid the legal consequences of a conviction under PEN 273.6, the statute prohibiting the breach of protective order conditions.

A guilty verdict for a misdemeanor protective order violation attracts at most twelve months of jail incarceration and court fines of no more than $1,000. The preferred sentence depends on the circumstances surrounding the breach.

If your RO violation is for engaging in acts of violence against the petitioner or being a repeat offender, the offense becomes a wobbler. The felony penalties if found guilty are:

• 16, 24, or 36 months of jail confinement
• Monetary court-imposed fines of at most $10,000

Protective orders are civil matters and do not appear on your record during background checks. Nevertheless, a conviction for violating these orders will appear in your record, leading to severe collateral consequences.

Immigration Consequences

If you are a non-citizen, a guilty verdict for a PEN 273.6 contravention could make you deportable or removable if it comes in addition to a baseline conviction for DV. Therefore, if you have a DVTRO, you should consult an experienced lawyer with knowledge of immigration laws to understand how the case outcome will impact your immigration status.

Contesting a Domestic Violence TRO

Once you receive a TRO, you should study it carefully and consult an experienced RO attorney to explain the sections you have problems understanding. Understanding the actions required from you makes compliance easy and prevents mistakes that lead to PRO or PEN 273.6 charges.

The temporary protective orders take effect immediately. Therefore, you should begin compliance immediately after you read them. Do so if you must avoid contact with the victim or maintain a distance.

The next step is to hire an attorney with knowledge of protective orders to offer guidance and draft your response. Filing a timely answer to the TRO allows you to share your side of the story and submit proof that you do not endanger the victim, making the PRO unnecessary. Your attorney will draft an answer that shows you have the petitioner’s best interest at heart. 

Be detailed when telling your story in the final hearing. Your lawyer should help you adequately prepare for the proceeding. Remain calm and comply with your lawyer’s directions when telling your story to prevent emotional outbursts.

The outcome of the compulsory hearing depends on the petitioner’s evidence and your response. If the judge turns the TRO into a PRO regardless of your efforts, comply with the terms of the orders. PROs are not permanent, as the name suggests. They last for a couple of weeks and sometimes years. Besides, if you comply with the TRO terms, the court is less likely to restrain you permanently.

Contesting PEN 273.6 Violation Charges

The legal penalties and disabilities associated with breaching a protective order are life- and career-altering. Your key to obtaining a favorable outcome, like a charge dismissal or reduction, is retaining the services of a competent criminal attorney. Solid defenses against the charges revolve around the circumstances surrounding the TRO violation. The common defenses your attorney can mount include:

1. An Invalid Restraining Order

The fact that a TRO comes from the court does not guarantee validity. Some orders are granted without legal grounds, making them invalid. Besides, the judicial system has protocols that petitioners must comply with when serving an accused person. If the TRO services were done procedurally, it would become invalid, leading to a charge dismissal.

2. Lack of Knowledge

When proving your charges, the prosecutor should show you knew that the TRO was issued against you. Therefore, it is a legal defense to argue that you did not know about the TRO. You can say that you were never served with a copy of the orders because the copies were sent to the wrong address, the petitioner forgot to send, or you were not adequately served.

3. The TRO Violation was Accidental

When a TRO requires you to avoid contact with the victim but accidentally run into the person while leaving work, in a shopping mall, or a park, you can claim that the breach of the orders was accidental.

4. You Had an Emergency Situation

Your lawyer can argue that the violation was necessary to avert severe harm or death in an emergency. For instance, when you have been issued with move-out and no contact orders, but you receive a call from your child that their mother, a protected person, is ill and needs medical care. You decide to drive to the house and rush her to the hospital. Under the circumstances, you are not guilty of a PEN 273.6 violation as your action was necessary in an emergency. The judge will review the facts surrounding the alleged emergency to determine whether there was a violation.

5. False Accusation

The petitioner can falsely accuse you, the respondent, of a violation out of jealousy or anger or to gain an advantage in an ongoing child custody or divorce proceeding. In this situation, you can use text messages, CCTV footage or witness testimony to show the actual events and that there was no violation.

Find a Competent TRO Attorney Near Me

Temporary restraining orders (TROs) can adversely affect your life. You might lose your job, child custody, child visitation, shared home, or job because of the orders. So, when served with these orders, contact an experienced attorney to evaluate the TRO and offer guidance.

At the Goldman Flores Restraining Order Law Firm in San Diego, we will explain the TRO conditions to improve compliance, file a response, and defend you in a TRO violation charge for a fair verdict. Call us today at 619-943-4400 for a no-obligation consultation.