California law allows victims of domestic violence to apply for an emergency restraining order or protective order. Individuals may obtain a domestic violence restraining order in either civil or criminal cases. Victims are not required in California to have suffered physical harm to obtain a protective order.
Individuals qualify to apply for and receive a civil harassment restraining order as a “protected person” if the person who is the subject or target of the restraining order has stalked, harassed, sexually assaulted, or threatened them with violence; and if the person who is the subject or target of the restraining order is a neighbor, roommate, friend, family member more than two degrees removed, such as an aunt or uncle, a niece or nephew, cousins, and more distant relatives, or even another person not of a close relation if circumstances merit such.
The protected person or petitioner must prove that:
- The subject of the restraining order abused or threatened to abuse the petitioner or the petitioner’s minor child, and
- The alleged abuser is an intimate partner or a first- or second-degree relative.
Restraining orders may include:
- Personal conduct orders
These orders are intended to prevent specific actions against every person named in the restraining order as a “protected person.” The following are some of the actions that a restrained person may be ordered to stop are:
- Contacting, calling, or sending any messages in any form;
- Attacking, striking, or battering;
- Sexually assaulting;
- Destroying personal property; or
- Disturbing the peace of the protected persons.
- Stay-away orders
These orders are intended to prevent a restrained person from coming within a certain distance from:
- The protected person(s);
- The home of the protected person(s);
- The workplace of the protected person(s);
- Schools or daycare centers attended by children of the protected person(s);
- The protected person(s) vehicles;
- Other places commonly frequented by the protected person(s).
- Kick-out or move-out orders (exclusion from a residence)
These orders inform the restrained person to move out from and leave the residential location of the protected person and only remove clothing and personal belongings until the court hearing. These orders may only be requested in domestic violence or elder or dependent adult abuse restraining order cases.
California law makes it a criminal offense to violate a restraining order. It is usually charged as a misdemeanor if the victim is not hurt. Defenses to a criminal charge of violating a protective order include the following:
- The protective order was not legally issued;
- The subject of the order did not receive any notice of the restraining order;
- The subject of the order did not intentionally violate the order; or
- The subject of the order was falsely accused.
Criminal law specialist John Patrick Dolan protects the rights of those charged with assault, domestic violence or spousal abuse. Mr. Dolan has over forty years of experience working to help his clients obtain the best resolution possible when freedom and reputation are at stake. Call us today at (760) 775-3739 or find out more online here. We guarantee our efforts to fight for the best possible outcome in your domestic violence case.