Domestic violence cases are emotionally draining for the parties involved. The potential penalties of a domestic violence conviction include receiving a permanent restraining order, which can be hard to bear. If the court issues a permanent restraining order against you, it can leave you uncertain about what you should or should not do. If you have children, a permanent restraining order can separate you from them or significantly reduce your time with them. A permanent restraining order can adversely impact your life in ways you never imagined. You should consult a skilled criminal defense attorney if you receive notice of a restraining order against you. At the California Criminal Lawyer Group, we have highly experienced attorneys with experience in handling domestic violence cases in Bakersfield. Our attorneys can help you challenge a permanent restraining order.

Types of Permanent Restraining Orders

Permanent restraining orders do not serve the same purpose. The type of restraining order the court issues against you depends on the facts of your case, including your relationship with the victim. Permanent restraining orders fall into the following categories:

Workplace Violence Restraining Order

Employers who wish to protect employees from violence or the threat of violence at the workplace can request a workplace violence protective order. An employer can seek a court order to safeguard one or several employees from anyone who has stalked, harassed, been aggressive, or threatened violence at work.

Workplace violence threats can occur in person, via telephone, mail, or online. It can also involve following an employee to or from work or during work hours. The company can request protection for staff who have been victims of abuse, other employees who could be at risk, and employees' family or household members.

Dependent Adult Or Elder Restraining Order

Individuals aged 65 and older can file for elder restraining orders, while individuals aged between 18 and 64 with mental and physical disabilities can file for dependent adult restraining orders. The law allows elderly or dependent individuals who fall victim to hurtful treatment, deprivation, abuse, or neglect to file for this restraining order.

The court can issue a restraining order to stop someone from neglecting or abusing an elderly or dependent person. Abuse can be physical, emotional, or financial. It can happen at any time and in any place, including online. It can include denying the elderly or dependent person access to money or necessities, isolating them from friends or family, or depriving them of food, medicine, or other necessities.

Civil Harassment Restraining Order

People not qualified for domestic violence restraining orders file civil harassment restraining orders. This restraining order is filed against co-workers, extended family, neighbors, and roommates. A person experiencing unlawful violence, like assault, battery, or stalking, can seek a civil harassment order. In cases of credible threats of violence, the victim can also file for a civil harassment restraining order.

Domestic Violence Order

A domestic violence order protects people from abuse or violence from individuals closely related to them. People who qualify for domestic violence orders include co-habitants, former spouses, married partners, and spouses. Children aged 12 can also file for domestic violence orders by themselves. An individual acting on a child’s behalf can also file for a domestic violence order.

The restraining order can prohibit the harasser from engaging in certain conduct and order the harasser to keep away from the victim, the victim's family, home or workplace, the victim's children's school, and other areas.

The Impact Of Permanent Restraining Order On Your Life

A permanent restraining order could negatively influence the following aspects:

Child Custody

When the court issues you with a permanent restraining order against you, it is presumed you are not fit to have custody rights over the child. Your time with your child can reduce or cease altogether. The law does not allow a parent who is a perpetrator of domestic violence to have custody rights over a child. Your partner can file a permanent restraining order on behalf of the child. Your partner can do so if he/she feels you will endanger the child. A child can file a restraining order against you when he/she reaches 12 years old.

However, you can present evidence to court to show you no longer pose a danger to the victim if you wish to have better chances of acquiring child custody rights or visitation. Proving that you have changed to ensure the child’s safety despite the accusations of domestic violence can help you win a child custody case. However, you or your attorney must provide the following as evidence that you are unlikely to harm the child:

  • Evidence showing that you attended individual therapy for anger management.
  • Evidence that you participated in a parenting course.
  • Documents of completed batterer’s intervention course.

Issuing a permanent restraining order does not determine child custody for either partner. The family court decides on visitation rights and child custody. The court can still order you to pay child support regardless of the outcome of the custodial battle.

A Permanent Criminal Record

If the court convicts you of domestic violence, one of the penalties could be a permanent restraining order. If you violate a permanent restraining order, this violation will be on your criminal record. The conviction will appear anytime a person performs a routine background check on you. A permanent criminal record could negatively influence job opportunities, housing, and other state licensing.

Move Out Orders

If you are the perpetrator of domestic violence against your spouse, your spouse can request the court to order you out of the residence you share. The local law enforcement officers, like the sheriff, will implement the move-out order. The court issues a move-out order to prevent further abuse of your partner. You will have a few days to pack your belongings and leave the residence you shared with the victim.

Violation of a Permanent Restraining Order

You should obey a permanent restraining order and avoid contacting the protected person once the court imposes the order. It can violate a permanent restraining order or face contempt of court charges if you deliberately act against the terms of the PRO. A violation of a restraining order is punishable under the law. The judge can be lenient in cases where you have no criminal record and if this is your first time violating the restraining order. However, you could face severe penalties for violating the PRO if you have a past criminal record or repeat the violation.

You must know of the existence of a PRO for your action to qualify as a violation of the terms of the PRO. It must also be evident that you understand what is required of you. Your action will not amount to a violation if the prosecutor committed a significant error during the filing process.

It must also be evident that you were in your right state of mind and capable of adhering to the terms of a PRO. For example, if you violate the terms of the PRO but are mentally unfit, the punishment for violating the order will not apply.

Violating a PRO is a wobbler under Penal Code 273.6. This means you could face misdemeanor or felony charges. The penalties you will face will vary depending on the circumstances. If the judge convicts you of a misdemeanor, you could face a fine that does not exceed $1000. You could also face a jail term that does not exceed one year in a county jail. If the judge convicts you of a felony, you could face a fine that does not exceed $10,000. You could also face a jail term of 16 months, two years, or three years.

The judge will consider certain factors when deciding your punishment for violating the terms of your PRO. Some of the factors could include:

  • Whether the protected person suffered injuries or not, you could face a mandatory jail term of at least 30 days if your PRO violation made the protected person suffer physical injuries.
  • Prior conviction for violating a PRO or related crime.

Following a PRO violation conviction, you could still qualify for probation. You must avoid committing any crime during your probationary period. Other conditions that must be adhered to include the following:

  • Meeting your probation officer regularly.
  • Participating in community service.
  • Reimbursing the protected person for expenses resulting from the violation.
  • Attending mandatory counseling.
  • Paying restitution to the victim for medical bills incurred because of the offense or making payment to a battered victim’s shelter.

If you fail to comply with the above conditions, the court could revoke your probation. If this happens, you could face the maximum sentence permitted under the law.

Permanent Restraining Order and Owning a Firearm

It is an offense to obtain, buy, or possess when the court issues a PRO against you. If you own firearms, the court can order you to surrender them to the nearby police agency to adhere to the PRO conditions. The court could also order you to sell them to an authorized firearm dealer.

You could face charges under Penal Code 29825 if you intentionally buy or possess a gun while the PRO against you is still valid. According to PC 29825, this crime is a wobbler. If the judge convicts you of a misdemeanor, you could face a fine that does not exceed $1,000. You could also face a jail term that does not exceed one year in a county jail. If the judge convicts you of a felony, you could face a fine that does not exceed $1,000. You could also face a jail term that does not exceed three years in a state prison.

Defenses To Permanent Restraining Order Violation Charges

You should consult an experienced criminal defense attorney if you face accusations of breaking the terms of a permanent restraining order. Some of the defenses you can present include:

False Accusations

Your spouse or former spouse could falsely accuse you of violating the terms of a permanent restraining order. False allegations of restraining order violations occur in divorce or contentious child custody cases. Your partner can falsely claim that you violated the PRO to avenge or have an upper hand in the custody case. The judge could dismiss your case if you convince the court that you are a victim of false accusations.

You Lacked Knowledge

You can only face charges of violating the terms of a permanent restraining order if the prosecutor proves that you were conscious of the fact that there was a restraining order against you. You cannot be guilty of PRO violation if you were unaware of an order against you.

You can apply this defense if you were not in court when the judge issued the PRO. Your attorney could prove your lack of knowledge by showing that you were not notified of a PRO against you. The judge cannot convict you for a PRO violation if the PRO was mistakenly served to someone else.

You Had No Intent

You can only face charges for violating a PRO if the prosecutor proves that you intentionally broke the terms of the order. If you violate the restraining order accidentally, the charges will not apply.

Appealing A Permanent Restraining Order

A permanent restraining order can negatively influence your short- and long-term lives. For example, a PRO can remain in your record for a period that does not exceed five years from its expiration. A PRO is not a criminal offense but can taint your reputation, making you seem violent, which potential employers should avoid.

At times, the protected person could maliciously file a PRO to gain some advantage over you, keep you out of the home, or deny you custody of shared children. If this happens, you have a right to appeal the decision of the court to impose a PRO on you.

You can avoid a PRO during a temporary protection order hearing. You can contest issuing a PRO, particularly if the protected person files it unfairly. The hearing aims to determine if the protected person needs further protection from you. Usually, the judge will require information from both of you to make a sound judgment because a PRO can limit your rights, like those to custody and visitation.

If you disagree with extending a temporary restraining order, you can present your evidence at the hearing. You relinquish your right to present your story if you fail to attend the hearing. You can present your appeal at the Court of Appeal. The judge at the Court of Appeal will review the lower court’s decision to determine whether the judge made a fair judgment.

The Court of Appeal has a statute of limitations for a PRO appeal. You should file your appeal within 30 days of the lower court’s decision. The Court of Appeal cannot accept fresh defenses or admit new evidence because it is not a trial court. Instead, the court will review the transcript from the lower court trial, the proceedings, and the evidence tabled.

If you are not familiar with the process and technicalities you must follow to appeal, you should seek the services of an attorney. You can appeal a PRO on the following grounds:

  • If the judge abused their powers.
  • If the evidence and the facts of the case tabled at the hearing do not support the decision of the judge.
  • If the judge committed a law mistake, for example, failing to follow the law or applying a wrong rule that applies to the facts of your case.

For you to increase your chances of winning an appeal, you should do the following:

  • Consult an attorney even if you intend to file an appeal on your own.
  • Inquire from your attorney about the procedure of filing an appeal and the possible grounds for an appeal.
  • Include as many grounds of appeal as possible in your case.

The possible outcome of the PRO appeal could include:

  • The court can uphold the PRO.
  • The court can schedule another hearing for the PRO.
  • The court can dismiss the PRO.

You can also file a motion for reconsideration as an option for an appeal. The purpose of the motion is to ask the judge who imposed the PRO on you to reconsider their decision. You can seek reconsideration if:

  • You have additional evidence that you were not able to table at the hearing.
  • You believe the judge did not examine or consider specific evidence well.

The judge can admit your new evidence and decide based on the legal provisions for such situations and the facts of your case. You should adhere to the requirements of the PRO throughout the appeal process, awaiting the Court of Appeal’s decision or the judge’s decision.

Ending or Changing a Permanent Restraining Order

A permanent restraining order generally takes five years. You could end the PRO before the five years expire, request a change, or wait until the PRO period ends. The law allows you to request to alter or modify the PRO. The following are the orders that can end or change a PRO:

  • Partner or spousal support orders.
  • Visitation, custody, child, and child support orders.
  • No-contact and stay-away orders.

You can also request to end or modify one of the above orders. For example, you can ask the court to terminate or alter no-contact or stay-away orders to enable you to see your children. Another option is to request that the court end spousal or partner support if your partner’s income has significantly changed since the order.

The following are the forms you should fill out to request a termination or change of a PRO:

  • Declaration according to UCCJEA (FL-105).
  • Expense and Income Declaration (FL-150).
  • Child visitation and custody application attachment (FL-311).
  • Request for Child Abduction Prevention Orders (FL-312).
  • If you intend to present witnesses in your case, you should fill out the witness list (FL-321).
  • FL-341 C, D, and E children’s holiday schedule attachment, joint legal custody attachment, and physical custody attachments.

Once you complete the forms, you should have a family law facilitator review them. The purpose is to check if you have completed the form correctly before filing it with the court. You should produce several copies of all the forms, keep two copies for yourself, present the original to the court, and leave one for your partner.

You should file the forms with the court clerk for free unless the PRO has expired. You can request a fee waiver if you cannot afford the filing fee. You should send some forms to your partner once you file with the court clerk. You should do so through a legal adult, not as part of the case. Ensure that the person you send serves your partner with forms within a designated period. The individual you send should also complete the proof of service and return it to you to file with the court. The proof of service confirms to the court that your partner received the forms you filed with the court.

The court will set up a hearing once you file and serve the required forms. You can present evidence of the changes during the PRO at the hearing. You can present witnesses and supporting evidence to assist you in your case. The judge can do the following after the hearing:

  • Terminate the PRO.
  • Change the PRO and impose a new restraining order that reflects the approved changes.

The judge will finally serve the law enforcement bodies with the amended order to ensure their databases reflect the modification.

What Can A Permanent Restraining Order Not Do?

California legislators have done all possible to make permanent restraining orders as strong as possible. However, there are some characteristics of the relationship between the victim and the abuser that these court orders cannot break. A permanent restraining order, for example, does not divorce you from your partner or dissolve your marriage. If you need to determine your children's parentage, you must do so in a different setting because restraining orders do not decide. Furthermore, you should know that permanent restraining orders have a time limit.

Find a Domestic Violence Attorney Near Me

Have you recently received a permanent restraining order notice? If you employ an attorney, you do not have to consent to all of the terms of the order. You should immediately contact an experienced domestic violence attorney. Our California Criminal Lawyer Group attorneys can help you challenge a permanent restraining order in Bakersfield. Contact us at 661-750-8230 to speak to one of our attorneys.