In domestic violence (DV) incidents, a temporary restraining order (TRO), also known as a temporary protective order, is a court-delivered injunction intended to prevent the reoccurrence of domestic abuse and give the involved parties ample time to resolve the problems leading to violence. The injunction bars you from close contact with the party requesting the TRO. If you want to understand TROs, you should talk to a competent domestic violence lawyer in Fresno. You can seek the help of a legal representative when applying for an injunction or when one has been issued against you. We will explain how TROs work at the California Criminal Lawyer Group in Bakersfield if you seek one or have one against you.

Temporary Restraining or Protective Orders at a Glance

Domestic partners or people in intimate relationships can have conflicts. When the disagreements escalate and one party threatens to harm or abuse the other, police are called to the scene. The dangerous party will likely be apprehended and issued a temporary protective order once the police arrive. The injunction stops the harassing or restrained party from engaging in a set of conduct for a specified period.

Many TROs are associated with domestic violence. Nevertheless, the court can issue these protective injunctions in matters that are not associated with family, like sexual abuse, physical abuse, or stalking.

Once the court issues a TRO, it schedules a hearing where the restrained party and the DV victim raise their issues. If the court reasonably believes the victim’s safety is at risk, it grants them a permanent restraining order (PRO).

The other type of protective order is the emergency protective order (EPO). It is issued before a TRO and is usually requested by the police officer responding to a DV incident. The officer requests the injunction at the scene if they believe the victim of the violence or threats is in looming danger from the person the orders are being sought against. EPOs become effective immediately and only last for seven days. The injunction protects the victim before the court grants them a TRO.

Typical Temporary Protective Injunctions or Orders

TROs fall into three categories. These are:

Domestic Abuse TROs

When an individual faces a threat or physical violence from a domestic or intimate partner, they can apply for a protective injunction from the judge to deter further violence. For applications the court deems urgent, they issue the DV protective order immediately, but it only takes effect for a particular period.

Previously, judges would grant DV temporary restraining injunctions to victims who face violence, threats, or abuse from the immediate family, like current or former spouses. Nevertheless, today, the list of individuals against whom orders can be granted has increased. The scope of DV has expanded beyond the conventional family to include:

  • Split couples or spouses
  • Domestic partners
  • Married spouses
  • Current or former lovers
  • Cohabiting individuals
  • Individuals who have sired children together
  • People living together or who previously lived together but were unmarried

Even if the party that threatens you with abuse or physical violence does not appear on this list, you can still request protection. If the abusive party is on the list, whether the court will issue protective injunctions hinges on the description of the abuse. If the party makes annoying phone calls or texts or hurts your emotional and psychological well-being, you qualify for protection.

Non-Family Members TROs

If the party abusing you or threatening violence is not a close relative or an intimate partner, the law still allows the judge to grant a TRO to prevent the following:

  • Stalking or provocation
  • Sexual assault
  • Workplace violence
  • Elder abuse
  • Firearm violence

Divorce TROs

The court can also grant a temporary protective injunction in a divorce proceeding to preserve the money and time spent with the children until the divorce case concludes. Protective orders delivered in these situations prevent the parties in the marriage dissolution from:

  • Canceling insurance coverage
  • Acquiring massive debts
  • Revising the list of beneficiaries in life insurance coverage or retirement account
  • Removing the minors or the other partner from health insurance coverage
  • Moving children out-of-state without the other partner’s or court authorization

The Process of Acquiring a TRO

For you to acquire a temporary restraining injunction against a harassing domestic or intimate party, you must present the paperwork explaining the events leading to the domestic violence incident and why you need protection. After completing the paperwork, you will submit it to the clerk in the family law court. When completing the forms, read the instructions carefully to fill out the correct information. Ensure the date and time of the domestic abuse incident are captured and indicate the type of injunction you seek from the court. You can simplify the application process by speaking to the California Criminal Lawyer Group in Fresno for legal assistance.

If you believe that you are in impending danger of harm or abuse from a close family member, you should call 911. The responding officer will evaluate the situation at the scene. If they believe it is unsafe to leave you with the dangerous partner, they will contact an on-call judge to ask for a protective injunction. The officer will prevent the conflict from escalating or arrest the abuser. They will also ensure you leave the crime scene safely for court.

Having an officer visit the scene is usually beneficial, especially if the DV happens at night when courts are closed. You cannot obtain a TRO at the time, but an officer can request it for you. You should call the police even if the abuser only threatened harm over the phone and you reasonably believe you are in imminent danger.

When the responding officer completes their investigations and feels the need for protection from the recurrence of domestic abuse, they will call a judge to request a protective injunction or order. Some judges will want to talk to you about your side of the story before granting the orders.

The judge will evaluate whether your situation requires the issuance of a temporary protective injunction as provided by the law. They will grant the order if they reasonably believe you are in imminent danger and that there is a need to protect you from further violence before a court verdict.

Not all DV cases are eligible for TROs. If your case falls short of the requirements provided by the law, the court will decline your application. However, it would be best not to lose hope because you could appeal the decision. An appeal is heard in a court proceeding with the defendant present so that they can challenge your application for a restraining order.

In California, even if your abuse incident is not related to DV, you can apply for a temporary restraining injunction. You can obtain a TRO if someone is stalking you or you are a victim of sexual violence. The process of applying for protection is the same as that for DV incidents. The only difference is that the guidelines are stricter.

In some instances, as the victim or potential victim of abuse, you do not have to apply for TRO. Where there is workplace violence, the employer requests protection for you. You cannot apply for this injunction. If you need one, the employer will make the application. However, school workers or police officers request TROs against firearm violence in person.

The Validity of TROs

A TRO will remain valid or effective until the court holds a hearing to rule on the PRO. In the proceeding, the petitioner and you, the restrained party, present proof for or against the permanent protection injunction. The hearing is usually held within two to three weeks of the TRO. A temporary protective or restraining injunction lasts 14 to 21 days.

However, an ERO is issued first before the court issues a TRO. The ERO is active for one week or five working days, and once it lapses, you should petition the court for temporary protection. When the temporary restraining injunction expires, you will request a PRO. In DV cases, a PRO can last for up to sixty months, while that in civil harassment cases is valid for no more than 36 months.

Divorce proceedings TROs are valid until the close of the marriage dissolution proceeding. The protection can last for months or years, depending on the length of the divorce case.

Action to Take After Being Temporarily Restrained in a DV Case

Temporary protective injunctions or orders typically come as a surprise for the party being served. Service of the TRO should happen in person because if done through mail or other means, the judge will deem it invalid and will not rely on it to grant a permanent one. Once served correctly, ensure you read the court orders carefully because violating them will attract criminal charges.

Generally, TRO paperwork comprises the date and time of the scheduled court proceeding, a list of the actions you must take, and other evidence the petitioner has filed against you in favor of their application. You will have two to three weeks after the service to respond. If you plan on fighting the injunctions, you must respond within the provided time. If you are not lawyered up, this is the time to do it because you will need legal guidance on approaching the orders. A lawyer will help you prove the truth if the TRO was issued due to pretenses. The steps you should take after being served are:

     1. Read the Entire Order or Injunction and Comply

You must carefully evaluate the TRO to understand the terms. The typical restrictions that come with the order are:

  • Cutting communication or contact with the petition
  • Not possessing a firearm for the duration of the TRO
  • Moving out if you share a home with the petitioner
  • Rules on child rights or visitation
  • Continuing child support payments
  • Providing financial support if the petitioner is your legal spouse or registered partner
  • Avoiding contact with pets
  • Paying some bills
  • Avoid incurring colossal expenses on shared property
  • Releasing some properties to the petitioner

Depending on your unique situation, the TRO will come with these and other requirements. Ensure that you read the orders and comply.

Again, you should analyze the paperwork carefully to note the hearing date and the deadline for responding to the order. Your lawyer should also help you evaluate the evidence against you and the offense the petitioner is accusing you of committing. A competent lawyer will further explain your rights.

You must understand that restrictive orders are civil matters. Therefore, the court will not appoint a public defender if you cannot afford one. The right to a lawyer is only provided for in criminal proceedings, so you must dig deep into your pockets and hire a private attorney.

     2. Hire a Legal Representative with Knowledge of Protective Orders

Having a lawyer in your corner is not mandatory during restraining orders. You can defend against a TRO alone. Nevertheless, the petitioner will likely have a lawyer in their corner, which will disadvantage you, leading the court to rule against you. Therefore, hire a lawyer immediately after you are served so that you can review the TRO with the help of a person who understands these matters. The attorney will also help you contest the petitioner’s evidence during the hearing and prevent the issuance of a PRO.

     3. Gather and Organize Evidence

With the help of your lawyer, you should:

  • Collect physical proof relating to the DV incident the petitioner seeks to address. The evidence can include video footage, clothes, or photos.
  • Put together paperwork and records that can help prove your innocence in the allegations, including your phone records, receipts, computer records, or GPS that can prove your innocence.
  • Jot down all witnesses with information about the accusations or DV incident. Obtain contact information about these individuals and write down their statements.

The judge must be convinced that the petitioner needs permanent protection from the abuser before granting a PRO. Therefore, the petitioner must prove all the accusations with a preponderance of evidence, which is the evidentiary standard in civil proceedings. The evidence you gather can help discredit the accuser’s accusations.

     4. Completing Form DV-120 and Submitting the Answer

The form you will fill out to respond to the TRO is DV -120. After gathering your evidence to contest a PRO, your lawyer will help you fill out the necessary forms and present them for filing in the family court. Another copy of your answer should be submitted to the petitioner. All this should happen within the stipulated time.

You will present two copies of your response to the court clerk, after which one will be stamped and returned to you, and the other will go to court.

You should know that you only serve the accuser after you have filed the answer. And because you cannot do it in person because of the existing TRO, you must find an adult to do it for you. If you cannot find a server, mail them the response. Once the petitioner receives the answer, you must submit proof of service to the court to demonstrate that you served the protected party on time.

     5. Showing Up for the Hearing

The judge schedules a PRO hearing when issuing the temporary protective injunction. Attending the proceeding is not mandatory, but it is best to attend to show the judge that you take the matter seriously.

In the proceeding, the protected party must convince the judge that the PRO is necessary to prevent future DVB incidents. On the other hand, you must compel the judge not to grant the order.

You will have the opportunity to submit evidence disapproving of the petitioner’s assertions. The physical evidence, records, and witnesses will help support your assertions.

After listening to all the parties, the judge will issue a verdict granting or denying the PRO. If the judge issues a PRO against you, the following adjustments will happen:

  • The judge will rule on provisional child custody
  • Issue orders on family pets’ custody
  • Ban you from possessing a gun
  • Instruct you to pay the protected party’s bills, including mortgage, household expenses, child support, and rent.

After issuance of the PRO, you must obey its content; otherwise, you risk criminal charges.

TRO Violation

Per PC 273.6, breaching the TRO terms is a criminal offense. A conviction for the crime is punishable by jail time. If you are lucky to escape incarceration, the violation will work in favor of the petitioner in the hearing, leading to the issuance of a PRO.

When you face formal charges for breaching a TRO, the prosecutor must demonstrate the following elements to obtain a conviction:

  • A judge granted a valid TRO
  • You were aware of the order’s existence
  • You possess the present ability to comply with the injunctions
  • You opted to breach the rules in the TRO deliberately

From these elements of a TRO violation, you can infer that you are innocent if the judge did not legally issue the injunctions. Also, if you lack knowledge of the existence of the TRO, you are innocent. A deliberate breach or violation of the order means you acted purposefully.

In particular circumstances, you can commit another crime while in breach of the TRO. If this happens, the prosecutor will file two charges, one for the TRO violation and the other for the alleged crime.

Penalties for a TRO Breach

A violation of PC 273.6 is a misdemeanor. If the court issues a guilty verdict after a trial, you risk a jail sentence that lasts at most twelve months. Additionally, the court can instruct you to pay monetary fines of no more than $1,000. The court fine can be imposed alongside or instead of jail incarceration.

If you are a repeat offender or were violent during the violation, a PC 273.6 violation is a wobbler. A felony conviction for the offense attracts at most 36 months in prison or court fines amounting to $10,000.

Immigrants also risk charges under PEN 273.6. If you are one of them, you should not worry about immigration consequences. However, if you are sentenced for an aggravated felony, you risk removal or inadmissibility, although this rarely happens.

Also, a conviction for a misdemeanor TRO will not affect your firearm ownership rights. However, when the offense is a felony, a guilty verdict will affect your gun possession rights. The court will deny you the freedom to buy or own a gun.

Viable Defenses for TRO Breach

The judge will allow you to contest the accusations before the court finds you guilty under PC 273.6. You can challenge the allegations to prevent a conviction or lesser penalties, but you need the help of a lawyer to build a successful defense. At the California Criminal Lawyer Group in Fresno, we will evaluate the circumstances surrounding the violation and craft solid defenses for a fair outcome. The strategies we will apply in your case are:

The TRO was Unlawful

You are only guilty of TRO breach if the court legally issued the injunction. If the defendant forged the order or there was no basis for giving it, the TRO is invalid, making you innocent. Again, if the court issued a valid order, but you were not served in person, the order is unlawful and, therefore, could not have taken effect.

You were Unaware of the TRO’s Existence

The prosecutor should show that you knew the order existed for you to be guilty. If the petitioner never served you with the injunction or did not personally receive it, you can assert that you are innocent because you were unaware of its existence.

The Violation was Accidental

You must have violated the TRO willfully or purposefully to be guilty. Therefore, the court will not find you criminally liable if you demonstrate an accidental violation.

Find a Competent Domestic Violence Lawyer Near Me

You should take temporary protective orders or injunctions seriously when applying for or defending against one. You require the assistance of a competent lawyer to understand the relevant statutes, court processes, and evidence rules to help you with your petition or when crafting defenses. At the California Criminal Lawyer Group in Fresno, we can help streamline these processes. Contact us at 559-712-8377 for legal guidance.