California Domestic Violence Restraining Order – How It Works

A domestic violence restraining order is a court order issued in a domestic violence case that the accused refrain from

• harming,
• threatening or
• harassing the alleged victim.

A violation of the order can lead to criminal charges under Penal Code 273.6 PC. Penalties include a misdemeanor charge (as opposed to a felony) and up to one year in county jail.

A domestic violence case is one where the defendant and the alleged victim are or were

• domestic partners,
• in a dating relationship,
• in an intimate relationship,
• share a child together, or
• the victim is or a household member.

The length of the orders are:

• emergency protection orders – up to 7 days
• temporary restraining orders – 20 to 25 days
• permanent domestic violence restraining orders – up to 5 years

The specific terms and conditions of a restraining order will vary from case to case. However, all orders include provisions that prevent the restrained person from having any contact with the protected person. Contact generally includes:

• personal contact,
• phone calls, text messages, and e-mails, and
• interaction on social networking sites.

In addition, most orders say that a party has to:

• pay child and/or spousal support,
• release or return certain property, and
• attend a 52-week batterer intervention program (domestic violence classes).

Note that under Assembly Bill 818, police must temporarily confiscate any guns when serving you with a domestic violence restraining order.

The order may also affect child custody. Note that there are times when a restraining order is granted, but then charges of a crime that gave rise to the order are dismissed. In these situations, the order itself may get dismissed as well. This will often depend on:

• the type of restraining order that was issued, and
• the language set forth in the order.

Our criminal defense attorneys will highlight the following in this article:

• 1. How long do restraining orders last?
• 2. What are the terms and conditions of a domestic violence restraining order?
• 3. Are judges required to impose it?
• 4. What happens if the underlying charge is dismissed?

1. How long do restraining orders last?

Emergency protection orders last up to 7 days. These orders are issued in emergency situations by the police. A law enforcement officer or police officer may grant the order if a person is in immediate danger of domestic violence.¹

Temporary restraining orders (TRO) are imposed by a judge usually for 20-25 days, thus making them “temporary.” A temporary restraining order is issued before a court date is set or a judge conducts a court hearing on the matter.²

Permanent domestic violence restraining orders may remain in effect for up to five years. A judge issues this type of order after conducting a hearing to determine whether long-term protection for a party is required.³

2. What are the terms and conditions of a domestic violence restraining order?

The exact terms and conditions of a restraining order (sometimes called a protection order) will be set forth in the order. The conditions will vary from case to case.

All orders, though, include provisions that prevent one party from having any contact with a certain family member or another party to an intimate relationship.⁴

Contact generally includes:

• inflicting any physical abuse,
• personal contact (that is, coming within a certain distance of that person),
• phone calls or text messages,
• e-mails,
• interaction on social networking sites such as Facebook, or
• any type of surveillance.

Many common provisions in these orders obligate a person to:

• surrender possession of a gun,
• pay child support,
• pay spousal or partner support,
• pay certain bills,
• not make any changes to insurance policies,
• release or return certain property, and
• complete a 52-week batterer intervention program.⁵

For the person to be restrained, the consequences of a restraining order may include:

• not being able to go to certain places or do certain things,
• moving out of a home,
• having limited interaction with that person’s child, and
• negative immigration consequences.⁶

3. Are judges required to impose it?

Judges in a domestic violence criminal case will impose restraining orders provided that there is a legal basis for the order.⁷

Note that a person seeking an order does not have to show that he or she suffered physical harm.

The person seeking the restraining order simply needs to prove that:

1. someone has abused or threatened to abuse him/her or his/her minor child, and
2. the alleged abuser is an intimate partner or a first- or second-degree relative.⁸

Further, note that Penal Code 273.6 PC is the California statute regarding the violation of these orders. The code section makes it a crime for a person to violate the terms or conditions of a:

• restraining order,
• protective order, or
• stay-away order.⁹

A prosecutor must prove three things in order to successfully convict someone of violating a restraining order. These are:

1. the judge issued a legal protective order,
2. the defendant knew about the order, and
3. the defendant intentionally violated that order.¹⁰

A violation of PC 273.6 is typically charged as a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to one year, and/or
• a maximum fine of $1,000.¹¹

In some cases, a violation of a restraining order can lead to felony charges. A felony charge is punishable by:

• imprisonment in state prison for up to three years, and/or
• a maximum fine of $10,000.

4. What happens if the underlying charge is dismissed?

Restraining orders are often issued after a person is charged with a certain domestic violence offense, like:

• domestic battery, per Penal Code 243e1PC, or
• inflicting corporal injury on an intimate partner, per Penal Code 273.5 PC.

There are times when a restraining order is granted, but then the charges of the crime giving rise to the order are dismissed.

In these situations, the order may remain in effect or it may get dismissed as well. The outcome largely depends on the type of order that was issued.

In general, note that a person can terminate a restraining order by showing that:

1. there has been a material change in the facts upon which the order was granted,
2. the law upon which the order was granted has changed, or
3. the ends of justice would be served by termination of the order.¹²

The dismissal also depends on the language set forth in the restraining order.

If dismissal is not automatic, a party must make a separate request to have it dismissed. This request is made in writing and it is made to the judge presiding over the case. The court may set a hearing date.

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