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Restraining Order Process Attorney

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The police can obtain restraining orders in emergency situations when the court system is not available, which are called Emergency Protective Orders. They are issued by a judicial officer who is on call and available to the police after court hours, on weekends, and on holidays.

The most common way to obtain a restraining order is to file a petition under a Domestic Violence Protection Act (DVPA) law. Each state generally has a form that is free to file, asking the court to restrain a person based on the victim’s statement. The form requires a person to sign a declaration under penalty of perjury stating the reasons for issuing an immediate restraining order.

People often lie in these declarations to gain immediate custody of the home, children, and pets. The first restraining order issued is called a Temporary Restraining Order (TRO). It is issued without the court hearing actual testimony, and usually, the restrained person is not present.

In divorce proceedings, TROs are often used to remove one spouse from the home based on allegations of domestic abuse. They can be used to require someone to surrender their firearms, stay away from a business they’ve built, and often, prevent them from seeing their children.

In most states, once someone has been removed from their home based on a TRO, a hearing is scheduled approximately 20 days later for a full hearing on the merits of the initial order. These hearings can last from 5 minutes to several days and should not be ignored.

What Is a Restraining Order?

A restraining order is a type of court order that helps protect a person from harassment or abuse. It orders the other person to stop contacting and/or approaching another person (or people).

In California, there are four different types of restraining orders: Emergency Protective Order (EPO), Temporary Restraining Order for Domestic Violence (TRO or DVRO), Criminal Protective Order (No Contact Order), and Civil Harassment Restraining Order (CHO).

Restraining orders can be used to prevent a person from:

Violating a restraining order can result in arrest and imprisonment.

Restraining Orders in California

EPO (Emergency Protective Order):
An EPO is a restraining order issued through a law enforcement agency. Emergency protective orders are valid for five days and are typically obtained by victims in domestic violence cases.

DVRO TRO (Temporary Restraining Order for Domestic Violence or TRO):
A DVRO (TRO) is a restraining order issued by a civil court. TROs last three weeks but can be converted into permanent restraining orders lasting one to three years. As the name implies, DVROs are used in domestic violence cases. California’s domestic violence laws define which types of relationships qualify for a DVRO (e.g., people who are or were married or couples in a romantic relationship).

No Contact Order (Criminal Protective Order):
This is a restraining order issued by the prosecutor’s office in active criminal cases involving domestic violence.

CHO (Civil Harassment Order):
A CHO is a restraining order issued by a civil court. It can be used to stop harassment and any other threatening, annoying, or harmful behavior from coworkers, neighbors, roommates, or anyone else. CHOs are generally not issued in domestic violence cases.

Violations of Restraining Orders

A restraining order takes effect from the moment it is served—for example, when the person being restricted receives the notification. After that moment, no communication can occur with the alleged victim. If communication occurs, the restraining order has been violated, and the restrained person may be guilty of contempt.

Contempt can be charged as a misdemeanor, which carries a sentence of up to one year in county jail.

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You must be officially notified that a restraining order has been filed against you for it to be valid. Formal copies of the restraining order must be served to you in person. These copies must be easy to read and must include form DV-120, Response to Temporary Restraining Order.

It is extremely important to formally file a response with the court. The response is your opportunity to answer the alleged victim’s claims. In the hearing, the judge will consider your response to decide whether to cancel the restraining order, change its terms, or issue a permanent restraining order.

Arriving early to the restraining order hearing, prepared and with an experienced criminal defense attorney, ensures the best possible outcome.

Not having an attorney at the hearing gives an advantage to the alleged victim, especially if they have an attorney. Their attorney will be prepared in a way that only an experienced defense attorney would know how.

While you can ask the judge to postpone the hearing so you can hire a lawyer, the judge may impose extra fees, and the alleged victim will have more time to prepare a case against you. Getting an attorney involved right away can increase your chances of winning, resolve the situation quickly, and save you money.

An Experienced Criminal Defense Attorney Will:

Prepare the appropriate documents to be filed with the court and ensure they are filed on time
Prepare you to testify
Skillfully respond to the judge’s questions and demands
Be prepared for unforeseen circumstances

Guidance from an attorney experienced in restraining orders from Progresso Legal Group can greatly improve your chances of getting the best possible result

The Purpose of TROs in Custody Battles

In child custody battles, whether as part of a divorce or paternity case, TROs are often used to “kick out” a spouse from the home and gain custody of the children based on allegations of domestic abuse.

If the court determines that a person is a domestic abuser—which can be based on a statement as simple as “he scared me”—they may lose legal and physical custody of their children. The victim is awarded primary physical custody, which affects visitation rights.

Supervised visitation is often requested and granted in cases where a TRO has been issued. This means one parent must have another adult present to see their child.

Perhaps most importantly, TROs make it extremely easy for the victim to move to another city or state if they wish, frustrating the “abuser’s” ability to see the children.

Why Parents Must Dispute TROs

Once declared an abuser, the presumption of equal parenthood is destroyed. An abuser is considered a threat to the children’s health and well-being and will have to go through a rehabilitation program to comply with court orders—such as anger management classes, parenting classes, and, in many cases, a 52-week batterer’s prevention program.

TROs Are Also for Men – Women Also Commit Battery

Men are placed in a terrible position in our society. They are told they can’t hit a woman, but that it’s okay for a woman to hit a man. Men are told it’s unmanly to call the police to fight their battle against a woman.

Frequently, an angry woman will call a man a coward if he tries to call the police—and an abuser if he defends himself.

The answer is that a man should call the police if he is being abused by a woman. It’s not about being called a coward, wimp, loser, or anything else. It is the only way he has a chance of winning.

If he can prove he wasn’t the aggressor—which he can do by being the one who calls the police first—then he has an argument to make to the judge in court. If he does nothing, he will lose.

Any woman willing to hit a man and call him names won’t hesitate to lie under oath to win in court.

There is another reason: to protect the children. If a woman is dangerous and the man does nothing to protect the children, Child Protective Services could take the children from both parents, and the man could be found to be an unfit father for leaving the kids with a dangerous person.

Requesting a Restraining Order from the Court

When filing a restraining order that you wrote yourself, you may not ask for enough protection, or you may include statements that can be used against you at the permanent restraining order hearing.

That’s why you should always seek a lawyer experienced in preparing restraining orders.

Defense Against a Restraining Order

Defending against a restraining order is a highly technical skill that requires a lawyer who knows their way around a courtroom, the rules of evidence, and how to uncover the truth in a case.

Defending a restraining order based on lies is extremely difficult and not something an inexperienced person should try.

WE HAVE BEEN SERVING HISPANIC FAMILIES WITH THEIR LEGAL PROCESSES FOR MORE THAN 25 YEARS

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