A restraining order is also termed a protective order. This makes sense since the order is intended to restrain one party from certain conduct in order to protect the other party. California law sets out four types of restraining orders that apply in different circumstances. Each type of order has its own requirements and its own rules for modification.
Four Types of Restraining Orders
While each of the four types of civil restraining orders are issued by the court for reasons of safety and security, the requirements to qualify for a restraining order are very different. California statutes describe the four different types of civil restraining orders. A person can petition a California court to prevent someone from certain specified behaviors. The resulting restraining order can be an emergency order, a temporary order or a permanent order, valid for up to five years.
The four types of restraining orders available in the state of California are:
- Domestic Violence Restraining order.
- Civil Harassment Restraining order.
- Elder Abuse Restraining order.
- Workplace Violence Restraining order.
California courts can also issue a criminal protective order. This must be demanded by the district attorney bringing criminal charges against an individual. The other orders do not have to be brought in the context of a criminal prosecution – any qualifying person can petition the court for a protective order.
Protective Orders for Victims of Domestic Violence
A California domestic violence protective order is intended to prevent or stop emotional or physical abuse, or the threat of abuse, between individuals in a personal relationship. The domestic violence statute specifies the types of relationships that qualify for this order.
The parties must be married, divorced or separated, or registered domestic partners. Alternatively, the relationship qualifies if they are currently dating or used to date; live together or used to live together; or have a child together. Finally, closely related family members qualify, including children, parents, brothers, sisters, grandparents and grandchildren.
In order to obtain a restraining order, a petitioner must establish that they and the person they seek to restrain are in one of these relationships. They must also show evidence that there was emotional or physical abuse or threat of abuse.
Contact with the Protected Party Is Prohibited
While the specific details of a domestic violence restraining order vary, all of these orders prohibit contact by the restrained person with the protected person. Contact includes not only personal contact, but also phone calls, text messages, emails, and any exchanges on social networking sites. The restrained person likewise is required, in most restraining orders, to give up possession of any guns, pay ordered family support and attend a batterer intervention program for up to a year.
Civil Harassment Restraining Order
Someone who wishes to petition for a civil harassment restraining order does not need to be in a personal relationship with the person to be restrained. Anyone who is the victim of violence, or who receives a credible threat of violence, can file a petition.
Likewise, a person who shows evidence that the person to be restrained has had a pattern of behavior that reasonably scares, annoys or harasses them can apply for a protective order. These are the most common type of restraining order in California. A petitioner can be anyone who has experienced violence or harassment.
Elder Abuse Restraining Order
Elder abuse restraining orders are intended to protect elderly persons against several different types of abuse. Unlike the other civil restraining orders and the criminal restraining order, an elder abuse restraining order can be issued for reasons other than physical abuse or threat of abuse. Although physical abuse of an older person is sufficient to obtain an elder abuse restraining order, other types of abuse also support it, including financial abuse, neglect and abandonment.
Workplace Violence Restraining Order
Only an employer can petition for a workplace violence restraining order. A California employer can seek this type of order to protect their workers. The employee themselves cannot seek this type of order, but, instead, must petition for a civil harassment restraining order.
What types of violence can support a workplace violence restraining order? The employer may seek the order when their employees have experienced stalking, physical violence or a credible threat of violence, stalking or conduct that would make a reasonable person afraid for their safety. The actions must have occurred in the workplace.
Criminal Protective Order
An ordinary citizen cannot apply for a criminal protective order because these are very different from civil orders and are issued only by a criminal court judge. They must be requested by the district attorney as part of a criminal case and are issued to protect either the victim of a crime or a witness to a crime. The person restrained is usually the defendant in the criminal case.
Two types of criminal protective orders are available. A no-contact order forbids contact between the defendant and the victim or the witness, and a peaceful-contact order allows contact as long as it is peaceful. These orders can be of long duration, up to 10 years, and violations can result in up to a year in jail.
The most common is the domestic violence restraining order. Either the party restrained or the party who initially obtained the order can seek a modification to the order if there is a significant change in the circumstances or some other good reason for the court to do so.
How Civil Restraining Orders Work
A civil restraining order starts with a petition. The person seeking the order files the petition with the court. Many courts offer assistance to people filing protective order petitions. The petition is immediately reviewed by the court, sometimes with the petitioner appearing before them at a court hearing.
These hearings are ex parte, meaning that the person to be restrained is not notified of or present at the hearing. The court can issue an emergency or temporary restraining order if they believe that the person is in danger from the person to be restrained. At the same time, the court sets a date for a hearing on a permanent restraining order.
Both the temporary/emergency restraining order and the notice of the hearing are served on the person to be restrained. They must obey the terms of the temporary order until the date of the hearing and can, at that time, appear at the hearing to argue against the issuance of a permanent order. After the hearing, a protective order is issued on Form DV 130.
Duration of Protective Order
A civil protective order can be issued for a maximum length of five years from the date of issue. However, a temporary restraining order, usually granted ex parte, generally lasts a month or less, or until the permanent hearing can be held. An emergency protective order is one issued by law enforcement, after obtaining a judge's authorization, when they are called on a domestic violence charge. This order lasts for a week or less.
In emergency circumstances, the time limit on a court order can be extended. For example, in April of 2020, as a result of the COVID-19 pandemic, California issued emergency rules extending existing domestic violence restraining orders in both criminal and family law cases. Emergency protection orders were extended for up to 30 days, temporary restraining orders extended for up to 90 days, and permanent domestic violence restraining orders, extended for up to 90 days.
Violation of Protective Order
California law makes it a crime for a restrained person to violate a protective order. Under California Penal Code Section 273.6, a defendant who knows of a lawful protective order against them and willfully violates it is guilty of a misdemeanor. This can be punished by up to a year in county jail and/or a fine of $1,000.
The violation can be charged as a felony if the defendant committed a violent act, and it is the defendant's second conviction for a protection order violation. A felony violation can be punished by up to three years in state prison and/or a fine of up to $10,000.
Modifying/Terminating Protective Orders
California Code of Civil Procedure Section 533 gives a court authority to modify or terminate a restraining order. They can do this if a showing is made of a material change in the facts on which the original order was granted, a change in the relevant law, or where justice requires a change or end to the restraining order.
If a party wants to terminate or modify any part of a domestic violence permanent protective order issued by the court on Form DV-130 after a hearing, they must file a request in court. If the order is for civil harassment, the request to modify is made on Form CH-600.
Request to Modify Must Be Filed Before Expiration of Current Order
The request to modify or terminate the protective order must be filed before the Permanent Restraining Order expires. Either the person protected or the person restrained by the order can file this request. They can seek to change orders that protect persons from violence or threat of violence by others, the list of persons protected by the orders, or any other terms of the restraining order.
The forms to file depend on which terms of the restraining order an individual wishes to modify or terminate. Generally the party seeking to modify must notice a new hearing on the modification or termination and provide the reasons they are seeking the changes. Both parties present their cases to the judge who makes the decision whether the restraining order should be modified or terminated, or remain in effect as is.
Terminating Domestic Violence Restraining Orders
Anyone asking the court to modify or terminate entirely a domestic violence protective order must file a new motion (Request for Order) and other documents. Once the proper documents are filed, the clerk will issue a hearing date for the motion. The other party must be served with the documents.
A person restrained by a domestic violence order should consider that getting the order changed or cancelled will be an uphill battle. The court often views such requests with suspicion, even if they are made by the aggrieved party. The court is likely to ask questions to determine whether the protected person is still in danger and whether the other party has forced the filing of this motion by threatening violence.
When it is the restrained party seeking to amend or terminate the restraining order, the court will insist on hearing evidence from both parties. The main issue will be whether the restraining order is still necessary.
- California Courts: Change or End a Restraining Order
- California Courts: Restraining Order
- California Courts: Form DV 130
- California Courts:Form CH 600
- Shouse Law: California Restraining Order
- Shouse Law: Domestic Violence Restraining Orders
- Shouse Law: Criminal Protective Order
- Shouse Law: Four Kinds of Protective Orders
- Under Section 533 of the California Code of Civil Procedure, a court may modify or terminate an injunction or restraining order upon a showing of a material change in the facts on which the restraining order was granted, a change in the law on which the restraining order was granted or that justice requires modification of the restraining order.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.