Long Beach Restraining Order Defense Attorney
The law provides a lot of protection for victims of things like domestic violence, elder abuse, civil harassment, or workplace violence. One of those protections is a restraining order. While it makes sense to want to protect these victims, restraining orders against someone can often feel like they cross the line of "innocent until proven guilty." There is, though, the opportunity to fight against a restraining order and protect your rights. Given the reality that some people lie to get a restraining order and take advantage of the system, it's important that you take every available measure to preserve your rights. At Power Trial Lawyers, we can help those who have been served with a restraining order as they try to get the undue burden revoked.What a Restraining Order May Require
A restraining order is a ruling made by a court establishing a series of restrictions on someone, particularly in their interactions with another individual. While there are some restrictions that are generally consistent in almost every restraining order, the court can make specific rulings, depending on the unique circumstances of any case. Some of the things that a restraining order may require of you include:
- You cannot threaten, abuse, harass, follow, stalk, assault, sexually assault, disturb the peace of, or damage the property of the individual who filed for a restraining order against you.
- You may not be allowed any contact, direct or indirect, with the individual by any means, including digital methods such as texting, email, or social media
- The lack of contact may extend to any children involved. The victim may be given temporary total custody for the duration of the order.
- It's likely that you will need to vacate the home if you and the victim share a home. This can be mandated even if you are the owner or tenant of the home.
- The orders may establish an alimony payment and child support if you are married and/or have children with the victim.
- The victim may be granted temporary ownership of things that you own jointly, such as a house, car, etc.
- Payment for any costs associated with the abuse that led to the restraining order may be required, including counseling, shelter stays, and medical or dental bills.
- You may also be required to pay for the other party's attorney fees.
- Any debts related to the home, car, etc., will still be your responsibility to pay.
- If you share a mobile phone account, it must be transferred solely to the victim's name.
- Any pets or other animals involved may be given over entirely to the victim, and you may be required to keep a distance from the animal and not hurt them.
- You may be required to attend any classes that the court deems appropriate, including a batterer's treatment program, anger management, or parenting classes.
- You may be required to not own a firearm for the duration of the restraining order. You may need to sell it, store it with the police, or part with it in some other way.
- The court may choose to grant other things that the victim asks for in their petition.
A restraining order, while not a criminal conviction, does become a part of your public record. As a result, it can negatively impact some aspects of your life in a similar fashion. For instance, it can be difficult to get certain jobs with a restraining order on your record. The same may be true for getting into a university. Some professional licensing boards may reject your application. It could even negatively affect your finances and social life. A restraining order comes with serious consequences, and if you want to defend against those, then you need to have a serious defense.Who Can Get a Restraining Order?
A restraining order is something that can be petitioned for by someone who is a victim of abuse. Although there may be times when restraining orders are used regarding workplace or elder care facilities, most restraining orders involve domestic circumstances and alleged victims of domestic violence or abuse. The restraining order is usually requested by the victim who is directly involved. However, those related to the victim within a second degree of consanguinity or affinity may also petition for a restraining order. They may also request that the restraining order protect members of their household or family as well. Some of those who may file papers for a restraining order include:
- Spouse or ex-spouse
- Registered domestic partner or ex-domestic partner
- Cohabitant or ex-cohabitant
- Romantic partner or ex-romantic partner
- Child over the age of 12
- Someone else on behalf of a child
- Mother and father
- Mother-in-law and father-in-law
- Grandparent or grandparent-in-law
- Grandchild or Grandchild-in-law
The length of a restraining order depends on the type of the restraining order that is issued. There are three kinds of restraining orders that could be issued against you. They are:
- Emergency Protective Order - These are orders that are issued by the police, typically when they have responded to a domestic violence case. While they are effective immediately, in most cases, they don't last longer than a week. During that time, though, it is likely that the victim may petition the court for a longer-term restraining order.
- Temporary Restraining Order - These orders are typically put in place for the time between when someone files for an order and a full hearing can be held. The orders have an expiration date, but they may be extended if there is a delay in having the hearing.
- Permanent Restraining Order - These are the orders that may be issued after there has been a court hearing. If the court determines that there is sufficient evidence to warrant a more substantial restraining order, they will issue orders that last years, possibly in perpetuity. When the orders are finalized, all previous orders will be canceled, and the new orders take full effect.
There's plenty of good reason to fight against a restraining order. This may not necessarily be because you want anything to do with the person who brought the order against you, but often because of the personal restrictions involved. In particular, for those with children whom they are prevented from seeing because of the order, there is often a particular urgency about addressing the situation. Beyond that, the consequences of the order appearing on your record and background checks can cause significant difficulties. Whatever your concerns, you shouldn't accept a restraining order without at least some attempt at clearing your name at a hearing.
There can be some challenges, though, that are unique in terms of fighting a restraining order. For instance, in many cases, a restraining order may also occur while you are charged with a crime related to the situation. A restraining order hearing is something that the prosecution in those cases would be allowed access to. Therefore, it's important that you avoid saying anything in the process of challenging the restraining order that might be used against you in the criminal cases.
Another challenge of fighting a restraining order is that there is no requirement for proof "beyond a reasonable doubt," such as might be found in criminal cases. This can seem unfair, given the effect that a restraining order may have on things like your right to own a firearm. Additionally, employers and others may treat a restraining order on your background check the same as a criminal conviction. However, the simple fact is that a restraining order requires a lower burden of proof, and the court must be convinced that the petitioner has met this burden with a preponderance of the evidence. This means that it's absolutely critical for you to have a solid defense, counter-evidence, and the ability to challenge the evidence presented against you.Fighting a Restraining Order
To be able to properly address the challenges of fighting a restraining order, you should strongly consider working with a lawyer. The time to fight a restraining order is at the hearing between a temporary and a permanent order. If you are successful, then the restraining order can be expunged from your record. Working with a lawyer can give you a formidable chance of making that happen.
We can help ensure that you gather any evidence that you need to make a strong case. In the hearing, we can represent you and challenge the argument put forth by the petitioner. Because the burden of proof is lower than in criminal cases, we can aggressively challenge the evidence against you. Importantly, we can help you prevent a mistake that could negatively impact any criminal charges that you could be facing. If you want a strong chance of avoiding the negative impact of a restraining order, Power Trial Lawyers can help you.Penalties for Violating a Restraining Order
How a violation of a restraining order is penalized depends on the nature of the violation and the judgment of the court. At the very least, a violation can be considered contempt of court, which is typically punished by imprisonment, fines, or both. A violation could also be considered a civil violation if there was any harm, injuries, or property damage involved. This could result in having to pay any expenses that were incurred from the violation, including things like medical bills. It may also result in having to pay for things like pain and suffering.
Violating a restraining order, depending on the action taken, could also lead to criminal charges. For instance, if the violation that occurred was an act of domestic violence, it could be charged that way. The violation itself, though, may also be charged as a crime. Violation of a restraining order can be charged as a misdemeanor or a felony. A first violation, if it is not particularly serious, may only be charged as a misdemeanor. However, subsequent or more serious offenses could likely be charged as felonies. If the charge is a misdemeanor, the penalties could include:
- A fine of up to $1000
- A maximum of one year spent in jail
- Mandatory counseling
- Relinquishment of firearms
- A restitution payment to the victim
Depending on the nature of possible felony charges, there are two potential penalty scenarios:
- Up to one year in county jail, along with probation
- A fine of up to $10,000 and 16 to 36 months in prison
If you've been charged with violating a restraining order, the criminal consequences could potentially be very serious. You need to be sure that you work with someone capable of putting forth a strong defense on your behalf, like the criminal defense lawyers at Power Trial Lawyers.Fighting Charges of Violating a Restraining Order
It is possible to fight back against accusations of violating a restraining order. The specifics of how to defend yourself will depend on the circumstances surrounding an accusation. What's important, though, is that, if you are accused of violating the restraining order, make sure that you keep records of everything that has happened related to the accusation. Counter-evidence could be essential to proving your case. Some of the more common ways of defending against accusations of violating a restraining order include:
- False Claim - While not something that occurs frequently, it is also not uncommon for restraining order petitioners to make false claims regarding violations. This typically comes from someone who is vindictive and vengeful and wants you to suffer. They must have evidence of a violation, though, so if there isn't any evidence or if the evidence isn't valid, this can be a means of challenging the claim.
- Trap - This occurs when the alleged victim is trying to get you to violate the restraining order so that you will face legal punishment for doing so. In these cases, the victim creates the circumstances that lead to a violation. For instance, if you are required to stay a certain distance from the victim, the victim may try to locate themselves within that range and then accuse you of having created the circumstances.
- Unaware of the Order - Even if the orders were issued, you can't be held accountable for them if you haven't been served them. If you can show that you haven't yet been given the orders, then that may be a valid defense.
- Accident - It could be that you unintentionally violated the orders. For instance, if you are told to stay a certain distance away from the other party, that can be difficult to achieve since you don't always know their location. You could enter a restaurant without knowledge that they were also there and were seated before you. You might never even notice them, but they could happen to see you on the way out and report you for violating the order. This defense of accidental violation might not always be available, but if you can reasonably show that you had no idea of their presence or that you did not violate the order in some other way, then you may be able to use it as a defense
- Issuance Problems - In some cases, the proper procedure may not have been followed, and the order could have been improperly or illegally issued. If this can be shown, then the orders are invalid, and you are not responsible for adhering to them.
If you're served with a restraining order, you need to be careful at that moment. It's very easy to take a bad situation and make it much worse. The wise thing to do is remain calm. Accept the orders and know that there will be a time and place to rectify the situation. It's absolutely critical that you don't do anything that violates the orders. Doing that would hurt your case tremendously and all but guarantee that permanent orders are going to be instituted.
The next thing you need to do is contact us at Power Trial Lawyers. We can help you in a number of ways, from preparing to challenge the orders to helping you understand how to avoid violating them. It can be hard, given the emotional situation that often surrounds these orders, but you need to trust the system in place to address the dynamic and allow you to get out from under these orders. It may feel like an impossible situation, but with an aggressive, strong lawyer on your side, it is possible to see these orders removed.We Can Help You Fight a Restraining Order
Restraining orders can have a serious impact on a person's life. We understand all the emotions, frustrations, and uncertainties that can come with being served one. We also understand the pain that these orders can cause a person, especially when kids are involved. Most importantly, we understand that these orders are often handed out in situations that don't warrant them. An overabundance of caution in attempting to protect victims is not a reasonable justification for violating a person's rights. Unfortunately, this is often the initial impulse. You have the chance to fight back against that overreach, though. At Power Trial Lawyers, we are ready to help you do just that. Contact us to take a look at your case today.