Criminal Defense Q&A: Will Visiting with Our Kid Violate My Restraining Order?
Michael explains that contact with one’s child could potentially violate a family law Temporary Restraining Order unless a certain box on the restraining order is checked.
Question:
EPO and a TRO in California – Do they Automatically overlap? I have two unmarried friends who had a domestic dispute that was physical. Party A contacted the police and filed DV charges against Party B. Party A was granted an Emergency Protective Order valid for 7 days. Party B was arrested for DV charges and released on bail. The 7 Day EPO has expired.
During the 7 day period, Party A filed a complaint in Family Court for a Temporary Restraining Order that does not have a hearing date until mid-September.
Party A now reaches out to Party B, via unknown numbers, electronic communication, telling Party B that the EPO has expired and that it would be okay to see their child.
Does the TRO go into effect immediately and last until the hearing date? Is Party B at risk of violating the Court mandated Restraining Order should they decide to visit their child? Party A (Protected person) appears to have violated their own EPO and TRO, are their consequences?
Answer:
It depends on what the family law Temporary Restraining Order says.
In the Restraining Order, there is a box that the Court can check that will allow the parties to have peaceful contact with each other, but only for the purpose of allowing COURT-ORDERED visitations with a couple’s children. Note that the visitations must be authorized by a Court, not simply desired by the parties. See Judicial Council of California Form DV-110.
If that box is checked, then Party B can meet with Party A briefly to effect COURT-ORDERED visitations with the child.
But, if that box is not checked, then Party B cannot meet with, or even contact, Party A, despite what Party A says. This is because only a Court can modify a restraining order, not an alleged victim. See Penal Code §13710(b).
Communicating with or contacting a person protected by a Restraining Order is not only a violation, it is also a misdemeanor that is punishable by up to 1 year in jail, up to a fine of $1,000, or both jail time and the fine. See Penal Code §§273.6(a), (c); 166(c)(1).
Continue reading criminal defense attorney Michael J. Ocampo’s answer at Avvo: EPO and a TRO in California – Do they Automatically overlap?
Learn more about the different types of restraining orders: Emergency Protective Order, Domestic Violence Restraining Order, Criminal Protective Order – What’s the Difference?
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.
