Criminal Protective Orders and Domestic Violence Restraining Orders—Nine Essential Things to Know

McManis Faulkner
Contact

McManis Faulkner

If you are a victim of abuse, please do not hesitate to seek immediate help from qualified professionals.  If you have been accused of committing abuse against someone, you should contact an experienced lawyer.

Please note that websites you visit may be viewed by someone else later using your browser’s history function.

The Basics.

There are different types of domestic violence restraining orders, including the following:

EMERGENCY PROTECTIVE ORDERS.  An Emergency Protective Order (“EPO”) is an order arranged by a police officer, typically at the request of a victim.  The officer contacts the on-call judicial officer by phone and fills out the EPO.  A judge may issue an ex parte EPO when an officer asserts reasonable grounds to believe that a person – including a child, elder, or dependent adult – is in immediate and present danger of domestic violence based on an allegation of recent abuse or threat of abuse.  An EPO may include personal conduct restraints, exclusion from the residence, stay away orders, and temporary care of a minor child.  EPOs expire five judicial business days after the date of issuance or seven calendar days after the date of issuance (whichever is shorter). 

The issuance of an EPO gives the protected person time to ask the family court for a domestic violence restraining order, or some other provisional relief.

CRIMINAL PROTECTIVE ORDERS.  A criminal protective order ("CPO") is an order a judge makes to protect a witness to, or victim of, a crime.  In a domestic violence case, the district attorney may file criminal charges against the alleged abuser, and this begins the criminal prosecution.  It is common for the criminal court to issue a CPO against the person who allegedly committed the abuse while the criminal case is ongoing, and, if the defendant is found guilty or pleads guilty, the CPO could potentially last for years after the case is over.

DOMESTIC VIOLENCE RESTRAINING ORDERS.  A domestic violence restraining order ("DVRO") is a family court order that is signed by a judge and protects the protected person from abuse or threats of abuse.  A person should seek a DVRO if another person has abused or threatened to abuse that person, and there is a close relationship between them: they either have or have had a married, cohabiting, or dating relationship, or are closely related, such as a parent, child, brother, sister, grandmother, or grandfather.  A DVRO is a temporary restraining order that usually lasts between twenty to twenty-five days, until the court hearing date.  At the hearing scheduled for the temporary restraining order, the judge may issue a permanent restraining order. 

Even if the victim is not in a close relationship with the assailant, he or she may be eligible for a civil harassment restraining order, or a workplace violence restraining order.

Who Requests the Order?

A critical difference between DVROs and CPOs is the ability to initiate the order.  For a DVRO, the victim of the abuse initiates the process in family court.  In contrast, the District Attorney requests a CPO.  Thus, victims in a criminal investigation may have little control over CPOs, and may even find that CPOs are issued with more restrictions than anticipated.

Similarities.

Both a CPO and a DVRO may order:

  • Personal Conduct Orders;
  • No Contact Orders;
  • Stay Away Orders;
  • Move-out Orders; and
  • Orders restricting the right to own, possess, buy, or receive firearms.

Personal Conduct Orders include but are not limited to preventing the defendant or restrained person from harassing, attacking, striking, threatening, disturbing the peace, surveilling, or blocking the movements of the protected person.  No Contact means no phone calls, emails, text messages, and no messages to the protected person through a third party.  Stay Away Orders require the defendant or restrained person to stay a certain distance away from the protected person(s) and stay away from specified locations. 

In contrast to a CPO, a DVRO may impose additional conditions on a restrained person, such as:

  • Obeying child custody and visitation orders of a minor child;
  • Care of animals;
  • Property control; and
  • Debt payment.

After the court issues a CPO or DVRO, the order is entered into a nationwide system, California Law Enforcement Telecommunications System (“CLETS”), that all law enforcement officers may access.

Length of the Process.

In family court, the person requesting protection files court forms asking for the DVRO.  The judge will typically decide whether or not to grant or deny the request by the next business day or the same day.  If the judge grants the orders requested, these are temporary restraining orders that only last until the next court date.  The restrained person must be properly served and has the right to respond to the request, explaining his or her side of the story.  When both sides attend the hearing, the judge may issue a permanent order that could last up to five years.

The time needed to obtain a CPO varies from case to case, influenced by date of arrest, type of charges, and involvement of the district attorney.  Thus, it likely takes longer for CPOs to be issued than DVROs.   

Effective Date and Expiration Date.

Orders are effective as of the date they were issued by the judicial officer.  CPOs and DVROs expire on the date written in the order.  CPOs can be in effect for up to ten (10) years.  DVROs can last up to five years, or longer if renewed.   

Exceptions to No Contact Orders.

A peaceful contact order allows the defendant or restrained person and the protected person to have contact with each other, as long as that contact is peaceful.  If the defendant or restrained person and the protected person have a child together, the court may order an exception that allows for peaceful contact for visitation with the child.  The family court is authorized to make custody and visitation orders of a minor child.   

Protection Applies from State to State.

A valid restraining order remains in effect anywhere in the United States.  Jurisdictions must give full faith and credit – in other words, honor and enforce – criminal and civil protective orders issued in other states, tribes, and territories.  If you move away from California, your order is enforceable wherever you decide to relocate. 

Priorities of Enforcement if Restraining Orders Conflict.

In domestic violence cases, it is common to find the same parties in different courts – criminal and family courts – at the same time.  Local courts generally have protocols to coordinate all orders against the same defendant or restrained person.  The restraining order likely explains how the orders must be enforced if there is more than one restraining order. 

Generally, an EPO takes precedence over any other restraining or protective order if the EPO is more restrictive.  If there is no EPO, then a No Contact Order takes precedence.  So, if a DVRO allows peaceful contact, and a CPO requires no contact, the CPO will be enforced.  In a situation where none of the orders includes a No Contact order, a CPO takes precedence in enforcement over any conflicting civil order.  If a DVRO permits contact between the restrained party and his or her child, but a CPO includes a No Contact order, the DVRO must ensure safe exchange of the child. 

Any Immigration Consequences?

A conviction that arises from a domestic violence incident may have immigration consequences in several ways, including removal from the United States and/or inadmissibility to the United States. 

Given the serious consequences of restraining orders, you may wish to consult an attorney to understand your rights and preserve your legal remedies.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McManis Faulkner | Attorney Advertising

Written by:

McManis Faulkner
Contact
more
less

McManis Faulkner on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.