San Diego Restraining Order Attorney is a highly rated and experienced criminal law firm offering services to clients in San Diego and its surrounding communities. The attorneys are conversant with California criminal law and can handle domestic violence restraining orders. It is essential to understand the categories of domestic violence and types of restraining orders, among other things, to know the steps to take if you are faced with such a case.
What is Domestic Violence?
Domestic violence, also known as domestic abuse, is defined as violence by an individual against another. Unfortunately, domestic violence can happen to individuals in all ranks of life, and classes, regardless of religion, age, race, education, socioeconomic status, gender, or profession. The saddest truth is most incidences of domestic violence happen between individuals who are in the same family or are in very close relationships (previously dating or are dating, lived or living in the same house, co-parents, or even married.
Domestic violence takes various forms which include: Sexual abuse, which involves forced intimacy, caressing, and offensive touching, among others. Physical abuse involves different actions that hurt the body of the other person, such as shoving, kicking, pulling hair, slapping, or punching, among others. Emotional abuse can include the use of threats to coerce an individual into doing something they are not willing to do. Psychological abuse is where an individual intimidates another and threatens to take that person’s children or expose private information to other people who would embarrass and humiliate him or her. Economic abuse may involve the abuser withholding resources that are needed by the other person, thereby rendering that individual incapacitated financially and entirely dependent on the victimizer.
Destruction of properties, stalking, disturbing the peace, and breaking into the house or workplace are also defined as domestic violence.
What is a Restraining Order?
A restraining order which is also referred to as protective order is an order given in court which offers protection to an individual from being abused either sexually, physically, emotionally, psychologically, threatened, or harassed. The individual who gets the restraining order is known as the “protected person” while the individual the protective order is against is known as “restrained person.”
Categories of Domestic Violence Restraining Orders
There are different types of restraining orders one can ask for, depending on various facts.
Temporary Restraining Order(TRO)
When you are facing domestic violence, and head to court to seek a domestic violence restraining order, you are required to fill out some paperwork and explain to the judge everything that has transpired and the reason you want a restraining order. If the justice believes you need protection, they will issue you with a temporary restraining order. Usually, the temporary restraining orders last for twenty (20) to twenty-five (25) days until a date is set for a court hearing.
Emergency Protective Order (EPO)
This type of restraining order can be given if law enforcement officers call the judge. When a victim of domestic violence feels threatened, they usually call the police. The officer who answers a call made regarding domestic violence may call the judge any time of the day and request for a protective order (emergency). The Emergency Restraining Order lasts for up to seven (7) days, and it takes effect immediately. The judge may command the abuser to vacate the home and not to go near the victim and children (if any) for seven (7) days. During that duration, the victim of violence has adequate time to file for a temporary restraining order (TRO) in court.
Permanent Restraining Order
When you attend your TRO court hearing, the judge may decide to give a permanent restraining order. This order is not permanent as it lasts up to five (5) years, after which you can request a new order if you feel threatened and need to stay protected.
Criminal Protective Order.
In some instances, if there is a series of domestic violence incidences the district attorney files criminal charges against the victimizer (abuser). This initiates a criminal case. It is not uncommon for the criminal court to give a criminal protective order against the abuser while the case is still on and, in case the defendant pleads guilty, for three (3) years post the case conclusion.
Benefits of a Domestic Violence Restraining Order
A DVRO is very important to a victim of domestic violence as it assures safety and wellbeing. The restraining order may:
Command the victimizer not to meddle with you and your children by following, threatening, assaulting, abusing or harassing through email or by any other way.
Give you brief control over properties you own jointly such as bank accounts, a computer, electronic appliances, a car, or household equipment.
Command the victimizer to give back your personal properties.
Forbid the victimizer from purchasing or having firearms.
Tell the law enforcers to exile the victimizer from home and facilitate your return there.
Command the abuser to keep away from places you ask, including your place of work, the school where your children go or anywhere you are living.
Command the victimizer to cater for your lawyer’s fees.
Order the victimizer to pay back all the expenses incurred due to the abuse such as medical bills, shelter, ambulance, or money lost for missing work.
Instances where you had children with your abuser, you may request the judge to give other things like:
Payments for child support – you may request the judge to command the victimizer to contribute towards the upkeep of your child or children.
Visitation as well as child custody – the judge will decide who between the two of you will live with the children and make critical decisions influencing the children as well as how much time will each parent spends with the child or children.
Various facts of your case are the determinants of whether the judge orders all or any of the requests listed above.
The Procedure for Obtaining a Domestic Violence Restraining Order
The process of obtaining the DVRO should follow a particular order step by step.
Step 1 - Obtain the request. This you get by finding the court clerk or an individual responsible for keeping court files and records and ask them for a DVRO application. You can apply for a DVRO in the county where the abuse occurred or where your victimizer lives.
Step 2 – Request every form you require to file a domestic violence restraining order from the clerk’s office. It is essential to inform the clerk if you need immediate protection and require a TRO. You can download the forms you need to file online.
Step 3 - A court hearing date is obtained at this step after filling the completed forms. The forms can be filed in person or by mail. The majority of people file in person because the orders are given fast and to ensure that nothing is lost. Mailing the form takes more time, and you are required to send a self-addressed and stamped extra copy to the clerk so that they can mail back filed copies of all the forms. The judge is the only person who can review the application or issue you with a TRO. Since the judges are always available to sign the orders, your order can be signed that very day you file it. If you submit your order in a busy court or late, the order is likely to be approved the following court day.
Temporary restraining orders last typically for a short period that is from the day you file to the date of a court hearing. Generally, a court hearing takes place approximately three (3) weeks after filing. The court clerk will inform you when to return for your hearing and write the venue and time on your forms. The court clerk retains the original forms and grants you photocopies of the forms. It is essential to attend the court hearing, and if you are unable to for one reason or another, you should inform the court clerk to have the ex parte order reissued and find a way to reschedule the hearing. If you fail to attend, the judge normally dismisses your case.
Step 4 – Before the judge makes any judgment or long-term orders, they must be sure that the abuser was appropriately served with your forms. The law dictates that the victimizer be issued with an official notice showing you filed for a protective order. The victim cannot serve the abuser with the forms but can be served in person by a relative or a friend who is eighteen (18) years or above and is not part of the case. The copy of the forms issued to the abuser should be readable. The copy should be of all the forms filed in court together with the blank response to TRO. This form is usually known as form DV- 120.
There is no fee paid to facilitate serving the abuser with the court forms unless you appoint a professional service where you will be required to fill a form that proves the service, Form DV-140 which will show the judge that your victimizer received the forms. The county sheriff must serve DVRO free of charge.
Step 5 – Your abuser is entitled to know you have requested a protective order to protect yourself from them, and they are allowed to answer to the information you have given in the court papers. Usually, the court will give time, which permits you to inform your abuser five (5) days before the hearing. If the judge grants you extra time to serve your victimizer, they will have two (2) to ten (10) days to respond to what you have indicated in your court forms, the DV- 120. In case you are unable to serve your abuser on time, you have to file a reissue of TRO, form DV-125. This form informs the court you were unable to serve your victimizer on time and gives a reason why. It requests the court to add extra time for service. At this point, you may ask the justice to prolong any TRO until the new hearing date is set.
Step 6 – Attend your hearing in court. The decision the judge makes about your protective order is dependent on your availability during the trial. Since the court clerk gives typically the time and place where the hearing will happen, you should arrive on time and bring;
Police reports, medical reports, photos, or other relevant bills and papers. Bring the original together with two (2) copies of every document you would like the justice to see. One of the copies is normally given to your victimizer
Copies of every form you got from or gave the court, which includes Form DV-140, the evidence of service.
The following are other forms you may bring in court if there is a need:
Form DV- 140, visitation order and child custody
Form DV-150 supervised visitation order
Form DV-170, other orders attachments
When you are attending the court hearing, you may bring your child or children along or get someone to look after them. Before carrying your child to court, you should call the clerk in court to find out if the courthouse has a children’s waiting area. In case your children have vital details about the threat of violence, you should ask a witness counselor, an attorney or the counselor who handles domestic violence on ways to have the justice hear what the child has to say.
Step 7 – As soon as you arrive in court, you should confirm your arrival officially with the court personnel. In the event, your victimizer is also present in the court, and you feel anxious about your security, you should inform the court clerk so that you can get help. You should avoid talking to, confronting, or arguing with your abuser.
Step 8 – Your abuser may come to court accompanied by his attorney, and you are without one. In such a case you may request the judge for a “continuance” to schedule a new date to give you time to get your lawyer, but it is entirely upon the judge to decide whether to deny or grant you extra time.
Step 9 – The judge will sign the protective order after hearing forms and hand them to you where you should take every copy of the forms to the clerk’s office so that stamping happens and the forms returned. You have a right to receive five (5) certified copies, though the order can still be enforced without being certified. The final court order will be given to various parties like the school where your children go, law enforcement agency, restrained person, and anyone who will aid implement that court order. You should keep two (2) copies for yourself. During the hearing, the court clerk usually writes (minute order) the order the judge made so if you fail to understand or are confused about the judge’s order you can request the clerk to give you the minute order copy.
Steps to Take if You Are Denied DVRO
The main aim of requesting for a DVRO is to protect yourself from your abuser. Sometimes the DVRO may be denied because your relationship with your victimizer does not meet the qualifications needed by the law or for any other relevant reason. In such a case you may search for protection via a Civil Harassment Order. You may also get in contact with any of the domestic violence resource centers around your area and seek advice, support, and help on ways to remain safe. They may do so by coming up with a safety plan and providing you with the resources needed.
Consequences of a Restraining Order for the Restrained Person
When there is a restraining order against you, your life completely changes because you are limited to do certain things or visit particular places. It can be very tough if, for example, you have children, but you cannot see them or spend time with them. Sometimes, you will be forced to leave your home and look for an alternative residence. There is much financial stress if you are ordered to pay child support and other bills. You are also denied a chance to own a firearm as long as the restraining order is valid. Also, you may face an immigration challenge where you cannot move to another state. If by any chance you violate the law, you would be incarcerated.
Find a Restraining Order Attorney Near Me
The process of obtaining a restraining order is stressful, and there are severe consequences for the restrained party. Whether you are protected or the restrained person, you will need help from an expert who has excellent experience in matters domestic violence restraining orders who will help you through the entire process of either seeking a restraining order or fighting to have the order against you lifted. San Diego Restraining Order Attorney should be your number one choice when seeking or responding to a DVRO, call our firm at 619-405-0063 and speak to an expert today.
If you are being charged for any crime related to a domestic violence in Orange County I recommend this law firm: Orange County Domestic Violence Attorney