PROTECTIVE ORDER VS RESTRAINING ORDER CALIFORNIA – WHAT’S THE DIFFERENCE?

If you’re living in California and you need protection from someone who is harming you, you might be hearing the terms “protective order” and “restraining order” being used interchangeably. However, these two types of orders are, actually, legally separate and distinct, and they are issued in either criminal or civil cases. They have distinct differences in terms of their definition, purpose, types, eligibility criteria, scope, duration, issuance process, and enforcement consequences.

This article aims to provide a comprehensive understanding of protective orders and restraining orders, highlighting their differences and clarifying their respective roles in providing legal protection.

Both protective orders and restraining orders are designed to safeguard individuals from harmful conduct like:

• Harassment
• Physical abuse
• Stalking
• Threats

The specific order will dictate exactly what type of behavior is prohibited and what’s allowed. However, it’s likely that the order will include provisions that the restrained party should avoid any form of contact with the protected individual.

Now, “contact” can be defined in various ways, including:

• Being physically close to the protected individual (i.e. coming within a certain distance of that person).
• Making phone calls, sending text messages or emails to them.
• Interacting with them through social networking sites such as Facebook.
• Engaging in any kind of surveillance or stalking.

All of these actions can be considered a breach of the protective or restraining order, so it’s crucial that the restrained party follows the order’s provisions to the letter.

So if you or someone close to you needs protection from someone else’s harmful behavior, it’s important to understand the difference between these two types of orders and which one might be the best fit for your specific circumstances.

By getting either a (criminal) protective or (civil) restraining order, you can obtain the protection and security you need to feel safe and secure. Keep reading to learn more about each of these orders and what they entail.

WHAT IS A PROTECTIVE ORDER?

A protective order, also known as a protection order or order of protection, is a legal document issued by a criminal court to protect individuals who have been or may become victims of crime such domestic violence, harassment, stalking, or other forms of abuse. Its primary purpose is to ensure the safety and well-being of the individual seeking protection by imposing certain restrictions on the alleged abuser’s behavior.

In short, protective orders are issued in criminal cases and requested by the district attorney on behalf of the victim. Let’s take an example of a domestic violence case, the judge and prosecutor may request a protective order to protect the victim during the (criminal) case proceedings. This order is issued by the criminal court and aims to protect the victim by prohibiting the accused from any contact with the victim or from going near their residence or workplace. The protective order typically remains in effect until the case is resolved in court. But it can also be extended for beyond the duration of the case. Violating a protective order can result in further criminal charges and severe legal consequences.

WHAT IS A RESTRAINING ORDER?

Restraining orders generally refer to legal orders in civil cases. A civil restraining order is a legal order issued by a court that requires an individual to refrain from specific actions or behaviors toward another person. Its purpose is to prevent harassment, threats, violence, or any conduct that may cause fear or harm to the person seeking protection. Restraining orders can apply to various contexts, including domestic relationships, neighbor disputes, workplace conflicts, or other situations where a person feels threatened or endangered.

If you’re being harassed or stalked by someone who’s repeatedly calling you or making threats, you can file a request for a civil restraining order against them. You’ll need to go to civil court and ask the judge to first grant an immediate Temporary Restraining Order, which will prevent the individual from contacting or coming near you. Regardless of the judge’s ruling as to the Temporary Restraining Order, a future hearing for a Permanent Restraining Order will be scheduled. At the latter hearing, the judge will determine whether a Permanent Restraining Order – potentially lasting for up to several years – is appropriate.

Please note that violating a civil restraining order may result in CRIMINAL charges being filed against the violator. This means that if the person subject to the civil restraining order violates it in any way, they can be charged with a criminal offense. This violation can be reported to the police, who can then take action and potentially arrest the violator. The violator may face criminal charges and could be fined or even sent to jail for violating the restraining order.

Unlike criminal protective orders, where the district attorney requests the order on behalf of a victim, in civil restraining orders, it is the victim themselves who file a request for an order with the civil court.

TYPES OF RESTRAINING ORDERS IN CALIFORNIA

In California, civil restraining orders may be obtained for a whole host of circumstances: these include domestic violence situations, neighbor harassment, workplace violence, online harassment, elder, dependent abuse and many other circumstances.

PROTECTION ORDER VS RESTRAINING ORDER

SCOPE AND DURATION:

Both Criminal Protective Orders and Civil Restraining Orders are generally issued for a set period, ranging from months to years, and depending upon the circumstantial facts of the case. Protective and Restraining Orders can often be renewed, however.

ISSUANCE PROCESS:

Criminal Protective Orders are requested by a district attorney on behalf of a victim. Civil Restraining Orders generally require that a petition be filed by the victim in civil court. In both scenarios, the judge considers the evidence at a hearing and uses their discretion to rule whether an order is required.

ENFORCEMENT AND CONSEQUENCES OF VIOLATION:

Violating a protective order or restraining order may result in legal consequences, including criminal contempt of court charges or civil penalties.

DEFENSES TO VIOLATING A PROTECTIVE OR RESTRAINING ORDER

If someone is charged with violating Penal Code 273.6, a Los Angeles restraining order lawyer can use a legal defense to potentially reduce or dismiss the charges. There are three common defenses that can be used:

• Lack of knowledge – This defense argues that the defendant did not have knowledge of the restraining order that they allegedly violated. If they can prove they were unaware of the order, they cannot be convicted of intentionally breaking it.
• Lack of intent – This defense acknowledges that the defendant may have violated the order, but argues that it was not done intentionally. For example, they may have accidentally come into contact with the person who filed the order.
• False allegations – Unfortunately, false accusations do occur, and this defense argues that the allegations made against the defendant are untrue. If they can prove that someone lied about them violating the order, this can help their case.
• Mistaken identity: If there is evidence to support a mistaken identity claim, such as someone else using the defendant’s identity or a case of mistaken identity by the alleged victim, the defendant may argue that they were not the person who actually violated the order.
• Invalid order: If the protective or restraining order itself is flawed or was issued improperly, the defendant can challenge the validity of the order as a defense.

CONTACT LOS ANGELES CRIMINAL DEFENSE ATTORNEY

Contact Los Angeles restraining order attorney Cyrus Tabibnia to discuss your situation and how he can help. He has experience representing clients in restraining order and protective order matters.

Restraining and protective orders can significantly impact your rights and well-being, and an experienced criminal defense attorney will advocate for your best interests. Contact Tabibnia Law Firm at 866-713-2159 for a consultation.