Temporary Restraining Order Archives - Lonich Patton Ehrlich Policastri

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How To Make A Temporary Restraining Order Permanent

May 19, 2021/in Family Law /by David Patton

Domestic violence restraining orders are incredibly helpful when you find yourself in a dangerous and abusive situation with some close to you. The court will grant these orders to you after an evaluation of the events leading up to you asking for a DVRO. There are various kinds of restraining orders – Emergency protective orders(EPO), temporary restraining orders(TRO), permanent restraining orders(PRO), and stay away orders. If you’ve already been granted a temporary restraining order, and are afraid for when it ends, how can you make it a permanent restraining order?

What is a Permanent Restraining Order?

A permanent restraining order is the strictest order in the state of California. Judges hand these out cautiously, and at their discretion. The circumstances which warrant a permanent order are usually severe, making acquiring one more challenging for victims. Don’t let this discourage you from seeking help. An experienced DVRO attorney can help you get the protection you need.

While a permanent restraining order isn’t actually permanent, it does last significantly longer than a temporary restraining order which spans 20-25 days on average. The span of a TRO depends on when your court date is scheduled. In California, a permanent RO can last up to 5 years. At that point, you can file for a new PRO with the courts to maintain protection.

Not only do PROs last longer, but they also have more severe consequences if the order is breached. A person who violates a PRO can be charged for each individual instance that they violated the order. So, if they violated the order 3 times, they can be charged with 3 separate counts. Violations can warrant penalties and fines, probation, and jail time.

During a permanent restraining order, both parties are prohibited from contacting one another for the duration of the order, even if the victim no longer wants the order. This means that the abuser can still be penalized if they communicate with the victim, even if they were not the one who initiated contact.

How To Make A TRO Permanent

After a judge has issued a temporary restraining order, a court date will be set by a judge. The victim will be protected until their court hearing (approximately 25 days). At this hearing, the victim and the accused abuser will both have a chance to present their case for why a PRO should or should not be granted. This is why having legal representation is so important. The victim will need to make a strong case for why a permanent restraining order should be put in place, as judges are very particular about granting these long term orders. If the victim does not show up to court, the temporary restraining order and its protection will end. If the accused does not show up, they will not be allowed to make a case against a PRO. The judge will make their decision without the input of the accused party. If the judge decides to put a PRO in place, they will determine the length of the order, having it last as long as 5 years.

If children are involved, you may file a restraining order on behalf of the child, or, if they are 12 years or older, they can file a RO themselves. Because of the nature of domestic violence in the case of children, PRO cases can often involve rulings on child custody and support.

If you need help in presenting your case for a permanent restraining order to the courts, or need help acquiring additional child custody orders in regards to PROs, get in touch with our San Jose restraining order attorneys. We have over 100 years of collective experience handling family law cases like TROs and PROs. Set up a free 30 minute consultation here. We also offer virtual consultations in light of COVID-19.

DOMESTIC VIOLENCE: PROTECTION THROUGH RESTRAINING ORDERS

June 3, 2016/in Family Law /by Mitchell Ehrlich

That familiar Hollywood story—a short marriage followed by an inevitable divorce—recently took a troubling turn when Amber Heard accused her husband, Johnny Depp, of spousal abuse. Detailing a series of domestic violence incidents, Heard asked a judge for and received a temporary domestic violence restraining order. While the criminal and civil implications of the Depp-Heard marriage have yet to be fully decided, domestic violence is a dangerous crisis that one in four women and one in seven men will experience in their lifetime.*

First, it is important to recognize what qualifies, legally, as domestic violence: abuse or threats of abuse when the abused and the abuser are or have been in an intimate relationship. Abuse includes intentional or reckless physical violence, threats of harm to third parties, and threatening behaviors such as harassment, stalking, or property destruction. Additionally, the abuse does not have to be physical—it can be verbal, emotional, or psychological as well.

Next, if a victim needs immediate help, he or she should call 911, a local domestic violence shelter, or the National Domestic Violence Hotline (1-800-799-7233). However, victims do have legal options, such as a restraining order, at their disposal as well. A domestic violence restraining order, like the one that Amber Heard received, is a court order that can be obtained by an individual who has been abused (or has been threatened with abuse) by a person with whom he or she has a close relationship. Once in place, a domestic abuse restraining order can be used to enforce the following actions: forbid an abuser to contact or go near the person who requested the order, force the abuser to move out of the victim’s home (even a joint home), pay child support, stay away from family pets, pay bills, and release property, to name a few options.

More specifically, there are four types of restraining orders: 1) an emergency protective order (EPO), 2) a temporary restraining order (TRO), 3) a “permanent” restraining order, and 4) a criminal protective order or “stay-away” order. An EPO can be acquired only by law enforcement and will only last for up to seven days, but judges are available 24 hours a day to grant the order if necessary. If a longer restraining order is needed, a person can seek a TRO—the type of restraining order that Amber Heard sought and received. For a TRO, an individual can go to court and explain to a judge why the order is necessary. If the judge agrees that the requesting person needs protection, a restraining order will be issued, and it will usually last between 20 to 25 days, until the court hearing date. Third, when an individual goes to a TRO hearing, the judge may issue a “permanent” restraining order instead. The order is not actually permanent—it only lasts for up to three years—but a person may request a new order when the previous one runs out. Lastly, sometimes the district attorney will file criminal charges against an abuser. Commonly, the criminal court will issue a protective order against the defendant (the abuser) while the criminal case is ongoing, and if the defendant is found guilty, for three years after the case is over.

Importantly, law enforcement or legal assistance is not necessary to ask for and receive a restraining order, but an experienced family law attorney can ensure that the process is carried out properly and make it easier to handle. For more information about how to best protect yourself when faced with a domestic violence crisis, please contact the lawyers at Lonich Patton Erlich Policastri. Again though, if immediate help is needed, please call 911, a local domestic violence shelter, or the National Domestic Violence Hotline (1-800-799-7233). The circumstances of Amber Heard and Johnny Depp’s divorce are alarming, but at least, they do provide an opportunity to have an open discussion about domestic violence and the tools available to those who need help.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

*http://www.cdc.gov/violenceprevention/pdf/nisvs-fact-sheet-2014.pdf

http://www.courts.ca.gov/selfhelp-domesticviolence.htm

Judge Grants Restraining Order against School-Aged Boy

April 8, 2014/in Family Law /by Gina Policastri

In a potentially precedent-setting move, a father from San Francisco has asked a judge for a restraining order – against an alleged nine-year-old bully. Generally, restraining orders are routinely issued against adult abusers, stalkers, significant others, and the like. However, as most parents presumably would, Stephen Feudner wanted answers after learning his 9-year-old son told him he’d been bullied, pushed, and punched at Rolling Hills Elementary School. When the public school claimed its hands were tied and refused to help, Feudner turned to the law.

Feudner’s temporary restraining order (TRO) from a Solano County judge stipulates that the alleged bully must remain 2 yards away from his son at all times and have no contact with him whatsoever. Daryl Snedeker of the Solano County Sheriff’s Department says he’s never heard of a restraining order against a grade-school student. However, the boy’s mother points out that there is no law against filing a restraining order against a child – and she’s right.

There are different kinds of restraining orders available through the court system, and each order has different eligibility requirements. For a restraining order against a child similar to the Feudners’ situation, a Civil Harassment Restraining Order would likely be the most appropriate. Civil Harassment Restraining Orders can be filed in Santa Clara County if the filing party and the other party do not have a familial or dating relationship (married, divorced, separated, dating or used to date, live together or used to live together) or are not related (parent, child, brother, sister, grandmother, grandfather, in-laws).

As for the Feudners, there’s a small but possibly determinative glitch in their case: the Solano County Sheriff’s Office officials had to serve the TRO within five days for it to go into effect. However, in order to serve the TRO, officials needed the alleged bully’s first and last name and full address. As of now, the school district still remains unwilling to release the information.

Although the Feudners’ restraining order against a school-aged child is unique, temporary restraining orders are very common, particularly in domestic violence situations. If you have any questions about restraining orders or are contemplating filing one, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex family law proceedings and offer a free half-hour consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Source: http://abcnews.go.com/US/father-files-restraining-order-year-allegedly-bullying-son/story?id=23040537