Blogs from September, 2014

People who have been exposed to domestic violence can get a restraining order that prohibits the person they fear from initiating contact with them. While a “no contact” order can be a legitimate resource for victims of family violence, it can also be used as a tool to gain an advantage in custody proceedings or to set up the criminal prosecution of a former spouse or lover as an act of spite. If you might be subject to a domestic violence restraining order in California, this article will tell you what you need to know about a no-contact order.

What is domestic violence?

California’s Domestic Violence Prevention Act defines domestic violence as “abuse” of any of the following persons:

  • The alleged abuser’s spouse or former spouse.
  • The alleged abuser’s cohabitant or former cohabitant.
  • A person who is or was engaged to the alleged abuser.
  • A person the alleged abuser dated more than once.
  • A person with whom the alleged abuser has a child.
  • The alleged abuser’s child.
  • Any person related to the alleged abuser within the second degree.

“Abuse” is defined as:

  • Causing or attempting to cause bodily injury, either intentionally or recklessly.
  • Sexual assault.
  • Placing a person in imminent fear of a serious injury.
  • Molesting, attacking, striking, stalking, threatening, battering, harassing, or disturbing the peace of another person.
  • Destroying another person’s personal property.

California’s definition of “domestic abuse” is very broad. A slap on the face constitutes abuse, but so does a fist raised in anger or threatening words, even if no physical harm is caused. That broad definition of abuse usually makes it easy for a person seeking a restraining order to obtain one.

What is a domestic violence restraining order?

A person who claims to the victim of domestic abuse can ask a court to issue a domestic violence restraining order. To qualify, the person seeking the order must convince a court that:

  • The restraining order is requested against a person who has the kind of relationship described above with the person seeking the order; and
  • The restraining order is requested against a person who has abused or threatened to abuse the person seeking the order.

The person seeking the order does not need to prove those facts beyond a reasonable doubt. A restraining order hearing is a civil proceeding. The person requesting the order only needs to satisfy the judge that abuse or threats probably occurred. Many judges have the attitude that someone who wants a restraining order should ordinarily receive one and so tend to give the benefit of the doubt to the person applying for the order when the evidence is in dispute.

A domestic violence restraining order can have several terms, but the most common is an order to have “no contact” with the person who asked for the order. Depending on how it is written, the order may prohibit:

  • Physical or “in-person” contact, including being near the person.
  • Entering or coming near the person’s residence, neighborhood, or place of employment.
  • Contacting the person by any means, including by telephone, mail, or email.
  • Having “indirect” contact by asking another person to contact the person.
  • Keeping the person’s property.

The least restrictive form of a “no contact” order prohibits having or threatening violent contact with the person who obtained the order. The order may also create exceptions that allow contact under limited circumstances. The most common is to allow a parent to pick up a child from the other parent.

How long will a “no contact” restraining order remain in effect?

A temporary restraining order, issued solely on the basis of written allegations, will remain in effect until a hearing is held. In California, the hearing will usually be held roughly three weeks after the temporary restraining order is issued.

A domestic violence restraining order entered after a hearing will usually remain in effect for three to five years. If the person who obtained the order can demonstrate a continuing need for protection, the order can be renewed for an additional five years. Judges also have the option to make the renewed order permanent.

What is the penalty for disobeying a “no contact” restraining order?

A “knowing and intentional” violation of a California protective order is a misdemeanor punishable by a fine and/or a sentence of up to one year in jail. Penalties are more severe for repeat offenders and for contact that results in a physical injury.

A violation is knowing and intentional if you deliberately violate the order. Coming across the person in a supermarket without knowing the person will be there is not a crime. If that happens and you initiate further contact that the order prohibits, you are committing a crime. If you are subject to a “no contact” order and you happen to see the person who obtained the order in public, it is always best to turn around and walk away.

What is the crime of domestic violence?

Criminal law in California makes it a felony to inflict corporal injury resulting in a traumatic condition upon any of the people listed above who are protected by the Domestic Violence Prevention Act (other than second-degree relatives). A “traumatic condition” means a wound, injury, or other “condition of the body” (such as impeding breathing or blood circulation by strangulation or suffocation). The traumatic condition does not need to be serious.

The penalties for violating California’s misdemeanor law against battery double when the battery victim is one of the individuals (other than second-degree relatives) protected by the Domestic Violence Prevention Act. A battery is the unlawful use of force or violence against another person.

The domestic violence that can be prosecuted under these laws does not depend upon the existence of a domestic violence restraining order. The criminalize conduct that is narrower than the definition of “abuse” in the Domestic Violence Prevention Act. It is possible to prosecute someone for violating a domestic violence law and for the separate crime of disobeying a “no contact” order.

Should I oppose an application for domestic violence “no contact” order?

If a domestic violence protective order is entered against you, the possibility always exists that you will be prosecuted for violating that order. That possibility is greater when the person who obtained the order is spiteful. People have been known to obtain “no contact” orders so they can set up a former lover or spouse in order to have them criminally prosecuted. If you are the subject of a “no contact” order, you must always fear that any inadvertent contact will be misinterpreted and that you might be prosecuted for violating the order.

In addition, if you have children with the person who obtained the order, a domestic violence restraining order will probably be more difficult for you to obtain custody of your children. You may be at a disadvantage in other family court proceedings if a domestic violence order exists.

It is best to avoid criminal charges and related difficulties before they occur. If someone has applied for a domestic violence restraining order against you, talk to a lawyer about your options. The lawyer who defends you at the hearing may be able to develop evidence that will help you in the future, even if the court enters an order against you.

Those facing charges in Orange County, Los Angeles County, Riverside County, or San Diego County are eligible to receive a free confidential case evaluation from our experienced lawyers. They will use their decades of experience assisting those facing charges for domestic violence to help better inform you of your options and more. Call (844) 807-8180 to get help today.