Domestic violence involves violent or aggressive behavior in a home where a person is a victim of an intimate partner. Many people think that domestic violence is only experienced in marriage, which is not the case.
The act is also referred to as love partners violence, domestic abuse, courtship violence, and spousal abuse meaning it can happen in intimate relationships. Therefore, there are instances where domestic violence occurs amongst people who have close blood relations or minors/elderly individuals trusted in your care.
The law states that domestic violence is when:
- An individual is physically hurt or tries to inflict pain on someone with ill intent or recklessly.
- Sexual assaulting someone close to you
- Making someone afraid by using blackmail or threats to harm them
- Disturbing a person's peace or destroying an individual's personal property
- Awkward behavior like intimidating, trailing, blackmailing, or beating someone.
Bodily abuse is not just beating. It includes kicking, being pushed, pulling a spouse's hair, lifting items at a person, threatening an individual, and locking someone from moving in and out of an area. It may even consist of abuse of the family pets.
Besides, the abuses cannot be physical only. The abuse can manifest in spoken words, emotions, or psychology. A partner doesn't have to hit you for the act to warrant an abuse physically. Violent behaviors come in various forms, and the abusers commonly use multiple ways to dominate and exercise powers over their victim.
While the law is clear in its domestic violence definition, domestic violence charges may be introduced and a temporary restraining order issued against you without merit. In some cases, the charges are a result of malicious intentions. If a temporary restraining order has been issued against you, seek legal counsel to fight the order. The LA Criminal Defense Law Firm team will guide you on the legal options available to you.
What is a Temporary Restraining Order (TRO)?
From the name, the Temporary Restraining Order is dispensed by the court. It is issued to prevent the aggressor from contacting the alleged victim (protected party) in a domestic violence dispute. Even if the alleged victim makes grave allegations of physical abuse or harassment, the restraining order is only issued temporarily (20 to 25 days) to prevent further violence in a domestic violence dispute. It remains in effect until a full hearing over the matter is held.
Upon the full hearing, the court will determine the case’s merit based on the evidence presented. The judge will then make a ruling of whether to lift or uphold the order. If the court agrees there was abuse and aggression, it can issue a Permanent Restraining Order lasting between 3 and 5 years, depending on the prevailing conditions.
Issuance of a Temporary Restraining Order
The courts issue the TRO if there is compelling evidence against the accused (restrained party) and based on the circumstances of the case. The court can issue a temporary order in the following situations:
Civil harassment restraining orders are issued to protect parties from stalking, assault, battery, or any other form of activity that can be considered harassment. Prosecutors must prove that the threat to the protected party is real and that the defendant intended to annoy, harm, scare, or harass the victim.
Law enforcement officers request emergency protective orders on behalf of a domestic violence victim if, in their opinion, the victim is in immediate or present danger of harm.
Domestic Violence Cases
A judge will issue a domestic violence protective order if satisfied that the protected party is at risk of harm from an intimate partner or a family member.
Once issued with a TRO, you only have two options: comply with the orders and seek legal representation. As part of the order’s requirements, you will be required to refrain from contacting the protected party, physically or electronically. Violating the orders is criminal, and the judge will issue penalties for the violation.
An attorney will be of significant help in this matter. They will help you fight the TRO by filing an answer to the TRO. Your version of the dispute will be presented through your attorney’s efforts, showing that you pose no danger to the protected party. The judge then will decide whether to lift the order or convert it to a Permanent Restraining Order (PRO).
What Will the Temporary Restraining Order Do?
Once the court issues a temporary restraining, you should abide by the regulations. Some of the dictates may include:
- Canceling communication with the victim, his or her children, relatives, or other relatives close to them
- Staying away from the children's house, work, or schools
- Staying away from your house if you were living together with the family
- No possession of a gun
- Abiding by child protection and visitation orders
- Heed to child support guidelines
- Support your spouse or partner
- Keeping off the home pets
- Pay outlined bills
- Do not alter your insurance policies.
- Return certain properties
- Do not interfere with your family property by incurring extra costs or taking part in actions that affect the property’s value or ownership.
After receiving a court order, the order is recorded in CLETS (Statewide Computer System). The system allows all US police officers to access criminal records quickly. If you plan to exit LA, law enforcement officers in the new city shall know of the TRO.
What a Temporary Restraining Court Order Cannot Do
In as much as a temporary restraining order are served when domestic violence arises, the order cannot do the following:
- End an already existing marriage — A TRO is not used to start a divorce proceeding. However, the TRO can be used as evidence in a divorce proceeding.
- Establish custody of the children — A temporary restraining order is not used to initiate a custody battle with your intimate partner. However, it can be used as evidence against you.
The Restraining Order Process
A victim can seek a TRO against you if they believe you are stalking, abusing, or threatening their safety. However, they must prove to the court why they need the temporary restraining orders. The circumstances of the issue and the evidence produced then inform the judge’s decision on whether to grant the request.
Besides, the victim only obtains a permanent restraining order after a hearing to determine the matter. Should the TRO expire before a hearing is held, the TRO will be reissued and a new court date set. The process of filing for restraining orders include:
1. The abused person seeks court-related forms and asks for domestic violence barring order free of charge.
2. The judge decides when to affect the order, either the same day or the next working day. Most of the time, the judge chooses to make the decision soonest.
3. If the judge granted the requested order, they would first issue a temporary restraining order that lasts until the case's full hearing. The temporary orders detail the following aspects:
- Directing the abuser to keep off from the family and have no communication with the persons under protection, the family, and even pets.
- Child custody status
- Who is entitled to the family home
- The utilization of the family property, for example, the family car
4. The victim asking for court protection should serve copies of restraining court order documents to the defendant before the scheduled hearing date. The TRO must be hand-delivered.
5. A restrained individual also has to give his or her side of the story by filing through answering the order invitation.
6. The protected party should file his/her proof of service by serving the restrained person with copies of the forms and filing with the court the proof of service for the judge to know that the individual has sufficient notice of hearing. The victim will do the following.
- Make copies of the proof of service, then file with the court clerk before a hearing is made. They should provide at least one filed-stamped copy to the court for a permanent order hearing.
- Prove beyond any reasonable doubt that indeed the restrained person was served with the court hearing dates and had adequate time preparing for the hearing but decided otherwise. If they fail to do so, they will affect their chances of securing a permanent restraining order against you.
If you (the restrained party) were not served with the TRO, they could request the judge to reissue the temporary restraining order before the matter is fully heard on a court-determined date.
7. At the hearing stage, you should have an attorney. Your attorney will present all relevant documents, witnesses, as well as other vital information for your defense.
- If you have people who witnessed the purported harassment or abuse, have them testify on your behalf.
- The victim may introduce emails, messages, voicemails before the court during the hearing. You will receive an opportunity to defend yourself against the accusations, an opportunity your attorney will utilize in telling your account of the situation.
- The court will also allow photos of damaged property and medical or police reports as evidence against you. While the evidence may be presented, a skilled attorney is well equipped to challenge the evidence.
8. Both the accuser and the restricted party are affected by the order to attend the court session.
- In case the protected party does not appear for the court hearing, the temporary restraining order will be dismissed immediately.
- Ailing to show up in court or offering a response to the TRO when called upon to do so works against you. It is important to work with your attorney to ensure the best legal outcome.
9. When the hearing starts, the judge will decide whether to continue with the temporary restraining court order or cancel it altogether. If the judge decides to extend the order, it changes from a temporary to a permanent restraining order that remains in effect for three or five years.
It is in your best interest to hire a criminal defense lawyer to guide you on what to do, primarily if you have children and pets. The attorney will take charge of your issue and give timely advice on the next course of action.
The processes in a court can be daunting and intimidating at times. It's better to work with your attorney in your defense. The LA Criminal Defense Law Firm has experts in domestic violence ready to handle your case in the easiest way possible.
Violation of a Restraining Order
Judges rely on Penal Code 273.6 to issue penalties or restraining order violators. In restraining order violations, the burden of proof lies with the prosecution. They will have to provide evidence to prove that:
- A court issued the restraining order.
- You knew of the order and were fully capable of following it.
- You deliberately violated the orders.
A successful first-time violation conviction is punishable as a misdemeanor offense. Restraining order violators risk facing jail time of no more than one year with a possible fine of up to $1,000. However, in instances where the violation is a second conviction or violence was witnessed in the violation, you could face felony charges. Felony offenders could spend up to three years in prison and pay a fine of no more than $10,000.
As a general rule, TRO offenders do not face immigration consequences. However, if the evidence is enough for the prosecution to introduce aggravated felony charges, you could be deported or be marked as inadmissible. Both consequences will compromise your ability to secure US citizenship.
Violation of restraining order charges can only be brought forward against the restrained party. Should victims in the orders initiate contact with the restrained individual, they will not be considered to have violated the order. This move works in your favor. You can argue that you pose no risk or danger to the victim. The court will have no choice but to lift the restraining order.
Defenses Against a Temporary Restraining Order Violation
Violation of a temporary restraining order may seem harmless at first. However, the penalties, if found guilty, are too grave to ignore. Your defense attorney may use the following defenses to challenge the violation.
No Willful Intent
Your violation could have been accidental, thus not deliberate. You could have bumped into the victim in a shopping mall, and you had no way of knowing they would be there. It is also possible you used the protected party’s street on your way to a friend’s place. They could use some of these run-ins to introduce stalking or creeping arguments, which are deliberate actions. However, with your attorney’s help, you can demonstrate to the court that the purported violations were accidental.
No Knowledge of the Order
While presenting their case, prosecutors must prove you had knowledge of the restraining order’s existence. If prosecutors fail to prove this beyond a reasonable doubt, your attorney will introduce the no knowledge of the restraining order as a defense.
No Lawful Order
Some restraining orders have no legal basis, and the best opportunity to challenge their validity is in a restraining order violation hearing. Your attorney will argue the order was improperly issued or that it lacks a legal basis for its existence. This is enough to have the violation charges dismissed.
Protected parties, in some situations, make false accusations against restricted persons. Anger, jealousy, and payback are factors that fuel their accusations, and your attorney can demonstrate this in court.
Offense Related to Violation of a Restraining Order
Prosecutors can introduce additional charges to your restraining order violation. The charges are introduced based on the circumstances of your case. They include:
Contempt of Court, Penal Code 166
You will be charged for violating Penal Code 166 if you engage in behavior considered disrespectful to the court process. Disobeying court orders, filing false statements, or being hostile or aggressive during a hearing are actions punishable as Penal Code 166 violations. The violations are considered misdemeanors and attract a six-month jail term and/or a fine to the tune of $1,000.
If you face a subsequent restraining order violation within seven years, there was a credible risk of violence in your violation, or the restraining order relates to domestic violence, the abuse of a minor, or an elderly individual, prosecutors may pursue felony charges. If convicted, you risk 16 months, 2, or 3 years in prison.
Vandalism, Penal Code 594
Any malicious destruction of another’s property is considered vandalism according to Penal Code 594. The definition includes damage to a spouse’s or elder’s property during a domestic violence dispute.
Vandalism is a serious crime in California and is prosecuted as such. The penalties are stiff and vary depending on the value of damages in the case, the risk of harm to the victims, or any prior convictions. Misdemeanor offenders part with a minimum of $400 (as determined by the court) and could face one year in jail. Felony offenders could part with any amount to no more than $10,000 and/or a jail sentence of one or three years.
Criminal Threats, PC 422
Threatening to harm or kill another is a serious offense. Restraining orders result in emotional reactions, and in the heat of the moment, restrained parties can issue threats. This is why prosecutors can introduce these charges.
However, prosecutors must prove the following for a successful conviction.
- The threat was communicated in writing, verbally, or electronically.
- The victim felt reasonably threatened and feared for their and their family’s safety.
- The threat was specific. For example, threatening to kill or cause bodily injury is a specific threat.
Criminal threats are wobbler offenses. Based on the severity of the crime, they are prosecuted as either a misdemeanor or felony offense. Misdemeanor offenders pay a fine of up to $1,000 and could serve a one-year jail sentence. Felony offenders, on the other hand, could part with a fine to the tune of $10,000 and three years in prison. The prison sentence could be enhanced if you have any priors, repeated the same threat in the last 24 hours, or had a dangerous weapon in your possession while committing the crime.
Stalking, PC 646.9
Anyone who harasses or threatens another or their loved ones is deemed to have violated Penal Code 646.9. Harassment or threats can be carried out verbally or communicated electronically or in written form. Prosecutors look at all these avenues when they introduce stalking charges.
Misdemeanor offenders could face one year in jail and/or a fine of no more than $1,000. Felony offenders, on the other hand, will face prison time of no more than five years and will be expected to part with $1,000 in fines as directed by the court.
Domestic violence is prosecuted under either of the following laws:
- Domestic battery, Penal Code 243(e)(1) or
- Inflicting corporal injury to an intimate partner, Penal Code 273.5
Both laws detail several consequences if convicted. Misdemeanor domestic battery offenders could face up to one year in jail and/or a fine of no more than $2,000.
Penal Code 273.5, on the other hand, is a wobbler offense. Misdemeanor convictions attract a penalty of one year in jail with a possibility of a maximum fine of $6,000. Two, three, or four-year prison sentences are issued to felony offenders, with a fine of no more than $6,000 added to the prison sentence.
Find a Los Angeles Criminal Defense Law Firm Near Me
Restraining orders are known to elicit varying emotional reactions. Some of these reactions may be adverse and could land you in trouble. In some cases, accusations that lead to the restraining orders being issued have no merit, and if not handled by an experienced attorney, it could lead to a record that could have been avoided. At The LA Criminal Defense Law Firm, we understand your predicament. Our experience over the years put us in the best position to advise you to ensure the best legal outcome. Call our team at 310-935-1675 if you need assistance with your case today.