What Is An Order Of Protection And Restraining Order?
There are a few different levels of orders in domestic violence cases. It starts from the time of the arrest. The police officer would be able to call an on-call judge and get an emergency protective order issued. That order would be good for five court days or seven calendar days whichever came earlier and after that order expired, or before the order expired, the victim would be able to seek a temporary restraining order in the family law or civil court and serve that against the accused.
Additionally, if someone was charged with a criminal complaint, the District Attorney would be able to ask the judge presiding over the criminal case to issue the “criminal protective order,” which could further prevent someone from contacting the alleged victim or perhaps the children, and that order would stand until the criminal case was resolved.
Contacting Spouse, Partner, Or Children
A person could definitely be prevented from contacting the alleged victim or their children. If the police served the person with an emergency protective order at the time of the arrest, then they would not be able to have any contact with any named party on that order for five business days or seven calendar days whichever came earlier. It could also prevent the person from returning to their own house.
Child Custody Rights
Someone who was served with an order preventing them from contacting their children would have to obey that order. They could perhaps seek some modification of the order in the family law court room or in a civil court room in order to restore some visitation rights or custodial rights. In the interim, if the order prevented them from contacting their children, they would not be able to legally contact them until they got a further order from the court.
Their first step should be to obey that order and not contact the other person at all, either in person, by phone, text, email, or social media. They should have no contact. They would not be allowed to have third party contact, either. This means the person would not be allowed to have a friend or a family member deliver a message to that person, even if the message was simply to say I love you, or sorry, or say hi to the kids, because those would all be considered violations of the restraining order and each violation would be punishable by up to one year in county jail.
Someone who was served with a restraining order would also need to surrender any firearms or ammunition they possessed. If they already possessed firearms or ammunition, then they would need to turn those over to law enforcement or a licensed firearms dealer and during the time the restraining order was in effect, they would not be able to purchase or attempt to purchase any firearms or ammunition.
The best way to retrieve things out of the house would be to go through law enforcement and do “a civil standby,” where an officer or deputy sheriff would accompany the person to the house to stand by while the person got things out of the house in a limited amount of time and they would make sure the restrained party was either not present during that time, or was safely tucked away while the other party got their things out.
If a person wanted to see their children and the children were not named in the order of protection, they would still be able to see their children, although there may be a line on the order that stated they would not be able to do so.
Sometimes when two people have children in common, the court may issue a restraining order saying they may only have contact with the restrained person as it related to the visitation or custody of the children. In other words, if they needed to exchange children during their normal visitation breaks, then it may be okay if the order allowed it. The order may also say that they could contact the children as ordered by any family law court because the family law court order would sometimes be able to supersede the criminal court order.
Limited or Modified Order of Protection
It would be very difficult to get a criminal protective order lifted or modified without the consent of the other party. Oftentimes, the other party would be okay with having contact, so they would notify the District Attorney, who would bring the case back before the court and ask that the order be modified to what is known as a peaceful contact order. This means that the person would still be able to live with the other party and still have contact, but only peaceful contact, so even a verbal argument that was not necessarily a crime would be considered a violation of the restraining order.
Emergency Removal From Home
A person could get removed from their own house or served with a restraining order, or an emergency protective order which would prevent them from going to their house if that was where the other party lived.
Even if the person being removed was the person on that lease, or even if they were on title, they would be excluded from their house if they were served with that. The judge would be able to issue an emergency protective order, if the judge found that reasonable grounds existed to believe it was necessary to prevent the occurrence or reoccurrence of domestic violence, child abuse, child abduction, or stalking, and the judge would be able to issue that order on the spot.
For more information on Restraining Orders and Protective Orders, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (707) 636-3207 today.