The San Diego Restraining Order Attorney is a law firm that deals exclusively with restraining orders. You can contact us for help if you want to file a petition to get an emergency restraining order or if you want to be defended when a restraining order is filed against you.
Emergency Protective Order Under California Law
There are several options for civil and criminal protection orders for victims of domestic violence in California. The protective orders may not stop the abuser from stalking or hurting a victim. However, the laws give the victim the right to contact the police in case of any disturbance from the abuser and have the abuser arrested immediately.
After domestic violence occurs, the police may request one of the parties involved in the violence to vacate the home. Usually, the abuser is the one who leaves home. The police have the authority to remove weapons such as guns from a scene of domestic violence.
A judge or commissioner issues an Emergency Protective Order, EPO based on the request of a law enforcement officer or the victim.
According to California Family Code Section 6250.3, a judicial officer, has to seek evidence while issuing a protective order. An EPO covers a victim for a limited period, usually three to seven days and gives the victim time to seek a more permanent restraining order.
Apart from domestic violence victims, an emergency protective order may help victims of harassment, stalking, and child abuse. EPO is fast to obtain, and the police or the victim can directly contact a Judge and request for an EPO without going to court. The protective order is effective even before the trial process begins and helps prevent any imminent harm. A judge issues an emergency protective order "ex parte" without requiring the other party to be present.
To receive an EPO, the applying party has to provide substantial evidence of domestic violence. According to California Family Code Section 6250, the individual seeking an emergency protective order may base evidence of violence on recent incidents of abuse or threats by the other party.
Domestic violence refers to violent acts committed by a member of a family against another. It may include the mistreatment of a spouse or child abuse. In some instances, an emergency protective order may cover other individuals in addition to the victim. The law covers children or other immediate family members of the victim.
Definition of Domestic Violence
Domestic violence refers to any form of abuse or a threat of harm by a family member with which the victim has been in a close or intimate relationship. There are several scenarios of an intimate relationship. An intimate person may be your spouse or your domestic partner, a fiancée, or someone with whom you had a romantic relationship, a person you have a child with or someone with whom you share a home.
Charges for domestic violence vary depending on factors such as:
- The severity of the injuries on the victim
- Whether there was a violation of an existing protective or restraining order
- Whether a minor was present during the attack
- Any person can be either a domestic violence victim or offender. In most cases, domestic violence cases to extend to severe crimes such as rape or murder. In most instances, the crimes are of less magnitude.
What is Abuse?
There are several definitions of abuse:
- Inflicting or attempting to inflict physical harm on a victim recklessly or intentionally. Physical abuse does not just refer to hitting the victim. It may also include shoving, kicking, pulling hair, or other forms of physical attacks
- Sexual assault where the attacker makes unconsented sexual advances towards the victim
- Making the victim scared through threats to inflict physical harm
- Intrusive behavior such as stalking and harassing the victim and disturbing their peace of mind is also a form of abuse
- Threatening to destroy or destroying the personal property of a victim
Abuse in a domestic setup does not have to be physical. There are three other categories of abuse; psychological, verbal, and emotional. Abusers employ a wide range of tactics to have power and exercise control over the abused individual.
The Scope of an Emergency Restraining Order
Even though an EPO is easy to obtain within a short period, it offers vast protection for victims of abuse:
- The order restrains the offender from contacting or communicating with the victim unless on grounds allowed by the court. As a victim, you are free from any communications with your attacker. You will enjoy calm and peace of mind as you will not receive further threats on the phone or any other unpleasant information from the attacker.
- The order restrains the attacker from committing additional acts of violence against the victim. You will no longer experience any form of physical or psychological attack once you obtain an EPO.
- The emergency protective order restrains the offender from entering the property of the victim or from destroying the property of the victim.
- The order requires the attacker to keep a certain distance from the victim. Therefore, if you have an EPO, your attacker will not come near your home or your place of work, as the law does not allow. In the case of child abuse, the attacker should not go close to where the child resides or near the place where the child goes to school.
- A restrictive emergency order requires an attacker to move out of the home shared with the victim. It would be hard to protect a victim if they share a home with the offender. A physical separation has to take place to ensure that the victim is safe from home.
- In a case where children are involved, the court often grants custody of the children to the victim. The attacker is not reliable to take care of the children, given their violent behavior.
- Depending on the nature of the abuse case, a judge may offer additional provisions under the restrictive emergency order. For instance, the judge may prohibit the offender from making any contact with the victim's friends or family members either physically or through other means such as a telephone.
After a judge issues a protective order, its details are recorded into a statewide computer system, and all law enforcement officers will have access to it. The protective order can work anywhere in the USA. For instance, if you move out of California within the EPO period, you need to inform the local police of the other state. If you move to California and you have an EPO from another state the California law and the police will enforce it and give you any support needed.
Effects of an Emergency Protective Order on the Offender
The consequences of having an Emergency Protective Order against you may be very severe. How can an EPO against you affect your life?
- You do not have the freedom to go to certain places or to do certain things. For instance, you cannot go close to the victim's place of residence unless the protective order ends.
- You may not be able to see your children for a long time. For instance, the order may prohibit you from going close to your children's school and from visiting them from home.
- You may lose your ability to own a gun. If you happen to have a gun at the time of the offense, the law requires to submit it to the authorities. Claiming your firearm back may be a very intricate process.
- The emergency protective order will require you to move away from your home. In cases of domestic violence, the offenders are usually the ones to leave home after the implementation of a restrictive emergency order.
- In some instances, the EPO may affect your immigration status.
The Process of Implementing an Emergency Protective Order
- The first step is the filing of a petition by the victim requesting the judge for a restrictive emergency order. The victim has to explain to the judge about the specific conditional orders needed and the reasons for seeking the restrictions.
- The judge weighs the request and decides whether to grant the protective order or not. Usually, the judge decides very fast within one business day or sooner to prevent any inherent danger or further attacks on the victim.
- If the judge approves an Emergency Protective Order, they give temporary protective orders that usually last for a maximum of seven days. The order outlines all the provisions of the EPO and mainly last up to the next court date when the victim seeks permanent restraining orders.
- The victim has to serve a copy of the protective order to the offender. As the victim, you do not have to give the copy personally. Instead, your attorney can assist you in notifying the offender that a protective order against them exists.
- After receiving the EPO, the offender may either abide by the order or file an answer to the restraining protective order giving the side of his story.
- After the seven days of the emergency protective order expires, the two parties, the victim and the offender, proceed to court for the first hearing. If the victim fails to show up in court, the EPO expires, and the victim does not access further protection. If the offender fails to show up in court, they will not have any chance to contribute or air their side of the story. In such a circumstance, the court decides in the absence of the offender.
- After the hearing, the court may decide to approve a permanent restraining order that may deny the offender chances of going near the victim of even the children involved.
Limitation of an Emergency Protective Order
Even if the Emergency Protective Order shields you from additional abuse from your offender, there are some things that the EPO cannot do:
- The protective order cannot end your marriage or your domestic partnership. The EPO will only protect you from attacks from a spouse or domestic partner but cannot terminate the ties that exist between you and the offender. It is only through divorce that you can end your marriage.
- The protective order cannot put in place the parentage system of your children with the offender unless you are married or in a proven domestic partnership with the offender. If such a relationship does not exist, the court will support the decision only when you agree with your spouse on how to take care of the children.
How Long is an Emergency Restrictive Order Applicable?
The restrictive emergency order is enforceable for a short period as the victim seeks a long-term form of protection. A permanent protection option may either be a permanent restraining order or a temporary restraining order.
Violation of Emergency Protective Order
If an offender violates the requirements of a protective order, they may attract further penalties. If a child is involved, an offender may lose chances of acquiring custody or visitation rights in the future due to violation of the set rules under EPO.
As a victim, you should call the police immediately the offender violates the requirements of EPO. The offender may face charges for contempt of court, felony, or misdemeanor. If the offender takes or conceals a child against the set protective order, felony charges, which include a fine, confinement in state prison, or both, may be applicable. A felony is a serious level of a criminal offense. Felonies are often punishable by imprisonment that may exceed one (1) year. For felonies, the prison sentences take place in federal or state prisons and not county jails. It is clear that violating EPO orders have harsh charges a child is involved.
Also, If an offender crosses tribal or state boundaries intending to violate a restraining order, he may face a federal offense punishment as outlined in the Violence Against Women Act (VAWA). The act came to effect in 1994 with some additions in 1996. The act outlines grant programs that help prevent women against domestic violence. Under the VAWA act, an abuser should not follow the victim to another state. The abuser cannot also force the victim to leave their current state of residence.
VAWA greatly assists victims of domestic violence in the following ways:
- It enhances complete funding of rape kits as well as all fees for domestic violence protection orders
- VAWA ensures that protection orders against domestic violence are fully applicable and enforceable in tribal, state, and territories in the United States
- It ensures that law officers undergo proper training in domestic and sexual abuse
- It allows immigrants without some required documents to apply for a green card to help the law officers efficiently prosecute their attackers.
How Does an Attorney Assist a Victim?
You may dismiss the importance of an attorney when asking for an emergency protective order. The process may seem easy and straightforward, making you consider going it alone. However, it is necessary to have an attorney assist you, especially when children are involved.
An attorney will help you prove to the judge that you indeed should get an EPO. For the approval of an EPO request, you must prove that the said abuse took place. You also have to prove that you are the victim and not the abuser. It would help if you had an attorney who understands the legal system to ensure that you get an EPO approved soonest possible to avoid further attacks.
You should not endure domestic violence. If you feel that your situation is dangerous to you or your children, you should seek the help of an attorney. The attorney will offer counsel, file the necessary paperwork, and present you in court during the court hearing.
How Does an Attorney Assist the Offender?
After receiving a notification of an emergency protective order against you, you should first contact an attorney. California domestic violence law is intricate and comes with detrimental consequences if you fail to abide. If you fail to seek the assistance of an attorney, a temporary emergency protective order may transform into a permanent restraining order that could even last for more than five (5) years. If you have children with the victim, a restraining order may bar you from seeing and interacting with your children.
After an emergency protective order expires, the case proceeds to court. If you fail to appear in court, the case will proceed in your absence, and your victim may get the custody rights of your children. It is therefore very crucial to have an attorney to represent you in court during all the hearings. This will help reduce the charges against you and give the best possible outcome.
Contact an San Diego Emergency Protective Order Attorney Near Me
If you or your loved one suffer any form of domestic violence, whether physical or emotional, you should seek the help of an experienced law firm like San Diego Restraining Order Attorney. We have attorneys who will help you seek the protection you need and prevent further assault. Still, if you are an offender, our firm will work with you to defend you if motion is filed against you. Call us at 619-728-6293 and speak to one of our attorneys today!
If you are dealing with a domestic violence case in Orange County we recommend this law firm: Orange County Domestic Violence Attorney