Emergency Protective Order, Domestic Violence Restraining Order, Criminal Protective Order – What’s the Difference?
When a person is accused of domestic violence, an order may be issued that prohibits him from contacting the alleged victim. The order may be informally referred to as a “restraining order.”
Technically, though, there are different types of “restraining orders.” Such orders vary in terms of what they prohibit a person from doing, when they can be issued, and how long they remain in effect.
Below is an overview of several types of “restraining orders.”
Emergency Protective Order
When does this order come into play? Typically, when police respond to a domestic violence call. If a police officer believes that there is an immediate risk that a person will batter[i] someone with whom he shares an intimate relationship[ii] or will abuse a child[iii] in the household, then the officer can contact a judge and ask the judge to authorize an emergency protective order.
What can this order do? A number of things: prohibit the restrained person from contacting, harassing, or threatening the protected person[iv]; determine who has temporary care and control of the children[v] and pets;[vi] exclude the restrained person from the home;[vii] prohibit the restrained person from looking for the protected person (if the latter moves out);[viii] prohibit any other behavior necessary to ensure that the restrained person stays away from the protected person, the family pet, and the family home[ix]; prohibit the restrained person from possessing a firearm or ammunition.[x]
What considerations must be made before this order is issued? To authorize this emergency protective order, the judge must find that there is an immediate risk of domestic violence[xi] and/or child abuse and that the protective order is necessary to prevent that outcome.[xii] It should be noted that the judge will base her decision entirely on what is told to her by the police officer.
How long will this order last for? The emergency protective order will automatically expire after a week.[xiii]
Domestic Violence (Temporary) Restraining Order
When does this order come into play? A person can apply for a temporary restraining order at any time—no police involvement is necessary.[xiv] To do so, the person must petition a family law court and persuade the judge that she is a victim of domestic violence.[xv]
What can this order do? Prohibit the restrained person from contacting, harassing, and threatening the protected person[xvi]; determine who has temporary care and control of the children[xvii] and pets;[xviii] exclude the restrained person from the home;[xix] prohibit the restrained person from looking for the protected person (if the latter moves out);[xx] prohibit any other behavior necessary to ensure that the restrained person stays away from the protected person, the family pet, and the family home; [xxi] prohibit the restrained person from possessing a firearm or ammunition;[xxii] prohibit the restrained person from modifying any insurance policies;[xxiii] determine who gets to use certain property and to what extent. [xxiv]
What considerations must be made before this order is issued? The family law judge must decide—based solely on the uncontested allegations of the alleged victim—whether the person has suffered domestic violence at the hands of the person she is accusing. [xxv]
How long will this order last for? Typically, three weeks. If the judge is persuaded, she will issue a temporary restraining order that will remain in effect until a future hearing date, which is typically scheduled three weeks later.[xxvi]
Domestic Violence Restraining Order (After Hearing)
When does this order come into play? Typically, at a hearing scheduled three weeks after a temporary restraining order has been granted. At this hearing, the family law judge will determine whether to extend the order or allow it to expire that day. [xxvii]
What can this order do? If granted, all of the conditions in the temporary restraining order described above (for instance, a stay away order, home exclusion, firearm restriction) will remain intact.[xxviii] However, if the judge decides to extend the order, she can also impose additional conditions, such as order the restrained person to pay child support[xxix] and/or spousal support,[xxx] to pay restitution for the protected party’s loss of earnings and out-of-pocket expenses,[xxxi] to participate in a 52-week batterer’s program,[xxxii] and to pay for the protected party’s attorney’s fees.[xxxiii]
What considerations must be made before this order is issued? The judge’s primary concern is the safety of the person requesting the order and the safety of the parties’ children.[xxxiv] The judge will be more likely to extend the order if she is persuaded that not doing so will put their safety at risk. At the hearing, the restrained person will have an opportunity to present evidence and explain why he is not a threat to the safety of his children or the person requesting the order.[xxxv]
How long will this order last for? Once the temporary order is extended, it can last three to five years.[xxxvi] The duration of the restraining order can be shortened only by court order at a hearing in which the protected person is given notice and an opportunity to object.[xxxvii] It should be noted that the protected party can seek to extend the restraining order for an additional five years or even permanently.[xxxviii]
Criminal Protective Order
When does this order come into play? At any time during the criminal court proceedings—for instance, at the arraignment or at any other pretrial hearing before an accused person is convicted.[xxxix]
What considerations must be made before this order is issued? In order to issue a criminal protective order, a judge must have good cause to believe that such an order is necessary to prevent the person to be restrained, or someone acting on his behalf, from harming, intimidating, or dissuading a witness or an alleged victim.[xl] In making this determination, the judge can consider a person’s criminal history.[xli] However, there must be some evidence to suggest that the person to be restrained may actually try to dissuade a witness or alleged victim; the protective order cannot be issued as a matter of routine.[xlii]
What can this order do? Prohibit the restrained person from contacting, harassing, or threatening the protected person[xliii]; taking, harming, or giving away any pets;[xliv] preventing or dissuading the alleged victim or any witness[xlv] from testifying;[xlvi] attempting to prevent or dissuade the alleged victim or any witness from testifying,[xlvii] calling the police,[xlviii] effecting an arrest,[xlix] or cooperating with the prosecution;[l] contacting the alleged victim or any witness with the intent to annoy, harass, threaten, or commit acts of violence;[li] owning or possessing any firearms;[lii] looking for an alleged victim who has moved out.[liii] The criminal protective order can also subject the restrained person to an electronic ankle monitor for up to one year.[liv]
How long will this order last for? For the duration of the criminal proceedings,[lv] meaning that the order will remain in effect until the case is dismissed or the restrained person is convicted (for instance, if he pleads guilty or is found guilty by a jury) or acquitted (meaning that a jury unanimously finds him not guilty).
Criminal Protective Order (Post-Conviction)
When does this order come into play? Once a person is convicted of a crime involving domestic violence. At the time of sentencing, the judge must consider whether to issue a protective order that prohibits the restrained person from having any contact with the victim.[lvi]
What considerations must be made before this order is issued? The judge must look at the severity of the abuse in this case, the probability of abuse in the future, and the safety of the victim and her immediate family.[lvii]
What can this order do? Compel the restrained person to stay away from the victim.[lviii] Additionally, if the restrained person is granted probation, the order can also prohibit him from threatening, stalking, sexually abusing, harassing, or inflicting violence upon the victim;[lix] exclude the restrained person from the residence;[lx] and impose additional stay-away conditions[lxi] (such as to stay away from pets or from additional locations[lxii]).
How long will this order last for? A post-conviction protective order can last anywhere from three to ten years.[lxiii]
Conclusion
Restraining orders can be requested by different people (for instance, alleged victims, prosecutors, and police) and can remain in effect anywhere from one week to ten years. When served with a restraining order, the best thing to do is to stay away from and not contact the protected party until a judge instructs otherwise.[lxiv]
[i] Family Code §6250(a).
[ii] Such as a current or former spouse, a current or former cohabitant, a current or former fiancé, someone with whom he currently or previously had a dating relationship with, someone with whom he has had a child with. Family Code §6211. Note: The misdemeanor domestic violence statute does not recognize a former cohabitant as an intimate relationship. Penal Code §243(e)(1). Thus, a battery committed on a person: (1) who is a former cohabitant; and (2) who does not share with the perpetrator any of the previously described intimate relationships is punishable as simple battery, not as domestic violence.
[iii] Family Code §6250(b).
[iv] Family Code §§6252(a), 6218(a), 6320(a). The number of activities that are prohibited is extensive. The restrained person is prohibited from “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party … [or] other named family or household members.” Family Code §6320.
[v] Family Code §6252(b).
[vi] Family Code §§6252(a), 6218(a), 6320(b).
[vii] Family Code §§6252(a), 6218(b), 6321.
[viii] Family Code §6252.5.
[ix] Family Code §§6252(a), 6218(c), 6322.
[x] Family Code §6389(a).
[xi] Family Code §§6203, 6211.
[xii] Family Code §6251.
[xiii] Technically, the sooner of the close of business on the fifth day after the order is issued, or on the seventh day after the order is issued. Family Code §6256. See also Judicial Council of California Form EPO-100.
[xiv] Family Code §6300.
[xv] Family Code §§6300, 6203, 6211.
[xvi] The number of activities that are prohibited is extensive. The restrained person is prohibited from “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party … [or] other named family or household members.” Family Code §6320.
[xvii] Family Code §6323.
[xviii] Family Code §6320(b).
[xix] Family Code 6321.
[xx] Family Code §6322.7.
[xxi] Family Code §6322.
[xxii] Family Code §6389(a).
[xxiii] Family Code §6325.5.
[xxiv] Family Code §§6324, 6325.
[xxv] Family Code §§6300, 6203, 6211.
[xxvi] http://www.occourts.org/self-help/restrainingorders/domesticviolence.html#filing. See also Judicial Council of California Form DV-110.
[xxvii] Family Code §6340(a).
[xxviii] Family Code §§6340(a), 6320 et seq. See also Judicial Council of California Form DV-130.
[xxix] Family Code §6341(a).
[xxx] Family Code §6341(c).
[xxxi] Family Code §6342(a).
[xxxii] Family Code §6343.
[xxxiii] Family Code §6344.
[xxxiv] Family Code §6340(a).
[xxxv] Family Code §6340(a).
[xxxvi] Family Code §§6345(c), (a).
[xxxvii] Family Code §6345(d).
[xxxviii] Family Code §6345(a). See also Judicial Council of California Form DV-130.
[xxxix] Penal Code §136.2(a)(1).
[xl] Penal Code §136.2(a)(1).
[xli] Penal Code §136.2(h)(1).
[xlii] Penal Code §136.2(a)(1); People v. Stone (2004) 19 Cal.Rprtr.3d 771, 776. [“[R]estraining orders authorized by [Penal Code] section 136.2 are those aimed at preserving the integrity of the administration of criminal court proceedings and protecting those involved in them. … [T]he required good cause must show a threat, or likely threat to criminal proceedings or participation in them. … There was no evidence, for example, that after being charged in this matter, appellant, or anyone on his behalf or at his behest, made any efforts by threat or force to dissuade either [victims] from testifying against him or proceeding with the prosecution. The fact that he had assaulted both of them before there were any criminal proceedings, and without any intent to interfere with such proceedings, is insufficient to justify the restraining orders.”] See also People v. Ponce (2009) 173 Cal.App.4th 378, 384-385.
[xliii] Penal Code §136.2(a)(1)(A); Family Code §6320(a). The number of activities that are prohibited is extensive. The restrained person is prohibited from “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party … [or] other named family or household members.” Family Code §§6320(a).
[xliv] Penal Code §136.2(a)(1)(A), Family Code §6320(b).
[xlv] A restrained person’s children are considered “witnesses” if they perceived the alleged domestic violence (either by observing it or hearing it). Penal Code §136.2(a)(2).
[xlvi] Penal Code §136.2(a)(1)(B).
[xlvii] Penal Code §136.1(a)(2).
[xlviii] Penal Code §136.1(b)(1).
[xlix] Penal Code §136.1(b)(3).
[l] Penal Code §136.1(b)(2).
[li] Penal Code §136.2(a)(1)(G)(i).
[lii] Penal Code §§136.2(a)(1)(G)(ii)(I)(ia); (d)(1). In addition, the restrained person must relinquish any firearms that are currently in his possession. Penal Code §§136.2(a)(1)(G)(ii)(I)(ib); (d)(2); Cal. Rule of Court 4.700.
[liii] Penal Code §136.3(a).
[liv] Penal Code §136.2(a)(1)(G)(iv).
[lv] People v. Stone (2004) 19 Cal.Rprtr.3d 771, 775. [“Although [Penal Code] section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal cation in which they are issued or to probation conditions, it is properly so construed. … The narrower scope section 136.2 suggests that the Legislature did not intend it to authorize restraining orders beyond those germane to the proceedings before the criminal court.] See also See also People v. Ponce (2009) 173 Cal.App.4th 378, 382-383; People v. Selga (2008) 162 Cal. App. 4th 113, 118-119.
[lvi] Penal Code §136.2(i)(1).
[lvii] Penal Code §136.2(i)(1).
[lviii] Penal Code §1203.097(a)(2).
[lix] Penal Code §1203.097(a)(2).
[lx] Penal Code §1203.097(a)(2).
[lxi] Penal Code §1203.097(a)(2).
[lxii] Penal Code §1203.097(a)(2); Judicial Council of California Form CR-160.
[lxiii] Penal Code §§1203.097(a)(2), 136.2(i)(1); Judicial Council of California Form CR-160.
[lxiv] Penal Code §§13710(a), (b); Family Code §6345(d).
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
