Restraining Order Attorney San Diego
RESTRAINING ORDERS, VIOLATIONS, & TRO DEFENSE
Whether you are the victim of abuse or harassment or have been wrongly served with a restraining order, time is of the essence. San Diego Restraining Order lawyer George H. Ramos, Jr. has significant experience in both obtaining and defending against restraining orders and will get started on your case immediately.
Unfortunately, many relationships end in the most explosive manner. Where violence or threats of violence exist, the Court has the power to grant restraining orders to assist individuals in protecting themselves. In such cases, the priority must always be the protection of one’s own safety. It is important to act quickly because delay can affect your entitlement to such an order.
If you are the subject of a TRO, it is imperative that you take immediate action as well and consult with an attorney. A hearing for a permanent restraining order will soon follow, and its issuance can severely impact public, private and personal activities. Background checks, state licensure, and gun rights are all affected by permanent orders, and the violation of any type of restraining order is a criminal offense.
- What is a restraining order?
- What are the different types of restraining orders?
- What are the levels of protection with restraining orders in California?
- How do you obtain a restraining order?
- Will the courts always grant a restraining order request?
- What rights can a restraining order take away and not take away from you?
- Are restraining orders enforceable?
- What are the defenses against restraining orders?
- How to hire a restraining order attorney in San Diego
WHAT IS A RESTRAINING ORDER?
A restraining order is a protective court order making it unlawful for the individual served, or named as the aggressor, to have any type of contact, communication, or surveillance of the protected party named in the restraining order, or TRO (temporary restraining order). Stalking, domestic violence, abuse and harassment charges are cases in which restraining orders are most commonly served.
TYPES OF RESTRAINING ORDERS
There are four types of restraining orders available to help individuals in need of protection:
Domestic Violence Restraining Orders
Domestic violence restraining orders are issued to protect individuals who have suffered abuse or threats of abuse by someone with whom the individual has a close relationship or who is a close relative. Close relationships include marriage or registered domestic partnerships, divorce, separation, dating (or used to date), having a child together, and living together (or used to live together). For cases in which individuals are merely roommates, domestic violence restraining orders are not applicable.
If you have questions regarding domestic violence, contact our San Diego Domestic Violence Attorney George H. Ramos, Jr. today for a free consultation with a spousal abuse lawyer. We are available to take appointments days, evenings, and weekends.
Civil Harassment Restraining Orders
Civil harassment restraining orders are issued to protect individuals who have been harassed, stalked, abused or threatened by someone with whom the individual does not have as close a relationship as is required for a domestic violence restraining order. This includes roommates, neighbors, co-workers and extended family members such as cousins, aunts, uncles, nieces, and nephews.
Elder or Dependent Adult Abuse Restraining Orders
Elder or dependent adult abuse restraining orders protect individuals who are either 65 or older or are between the ages of 18 and 64 and have certain mental or physical disabilities inhibiting their ability to do normal activities or protect themselves. A restraining order may be obtained if the individual has been the victim of physical, psychological, or financial abuse, neglect or abandonment, or deprivation by a caregiver of basic things or services needed to prevent physical, mental or emotional suffering.
Workplace Violence Restraining Order
An employer may request a workplace violence restraining order to protect an employee who has suffered from stalking, serious harassment, violence, or a credible threat of violence at the workplace. An employee cannot ask for a workplace violence restraining order on his or her own. Instead, employees wanting to protect themselves must seek civil harassment or domestic violence restraining orders.
LEVELS OF PROTECTION
The term, or effective length, of a restraining, an order can last for a period as short as several days up to a term of several years. There are three levels of protection for an individual who obtains one of the four types of restraining orders. The level of protection depends on the specifics of the case and determines the maximum effective length of the restraining order.
Emergency Protective Order (EPO)
An emergency protective order is most commonly requested by police officers for domestic violence cases. They are issued by “on-call” judges in cases of emergency when an officer suspects that an individual is in danger. The order takes effect immediately and lasts up to seven days. Further protection requires the individual to request a temporary or permanent restraining order.
Temporary Restraining Order (TRO)
A temporary restraining order is a preliminary restraining order issued by a judge until the case can be heard, and the need for a protective measure can be validated and justified. The effective term for a temporary restraining order is typically two to three weeks, or until the case can be scheduled so the defendant can testify and contest the order.
In California, TRO’s are usually issued on the word of the person seeking protection and may be obtained upon a showing of reasonable proof of harassment and an immediate danger of great or irreparable harm. The term “harassment” refers to unlawful violence, a credible threat of unlawful violence, or a knowing and willful course of conduct that seriously alarms or annoys a person and serves no legitimate purpose. Such conduct must be sufficient to cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the individual seeking protection.
Permanent Restraining Order
A permanent restraining order is issued by the court after a hearing is conducted and the judge determines that extended protection is necessary. The standard of proof depends on the type of restraining order requested, and both parties are given the opportunity to be heard.
Permanent restraining orders can last up to five years, however, if there is no termination date on the order, the order will last three years from the date it was issued. During the last three months of the restraining order, the protected person may request to have the order extended or made permanent.
OBTAINING A RESTRAINING ORDER
While restraining order applications include instructions for completion, the paperwork, procedures, and deadlines can be overwhelming. Due to the sensitive and potentially dangerous nature of domestic violence and stalking cases, it is strongly advised that the matter be handled by a qualified and experienced attorney to help ensure that measures for your protection and safety are granted and upheld.
At George H. Ramos, Jr. & Associates, our experienced San Diego Restraining Order attorney will assist you in the completion of all forms to ensure adequate and appropriate information is provided and instantly make the request for the restraining order(s) with the court on your behalf.
If immediate protection is necessary, a request for a TRO will be made that same day, and the judge is required to make a decision on that application the same business day. Upon receiving your application requesting a permanent restraining order, the court will schedule a hearing date. If the TRO has been issued, it will remain in effect until the date of the hearing. At the law firm of George H. Ramos, Jr. & Associates, your safety is our priority.
Temporary restraining orders are not enforceable unless the restrained individual receives notice. Furthermore, a judge cannot issue a permanent restraining order unless the opposing party is properly served with copies of all documents filed with the court and put on notice of the scheduled hearing.
San Diego Restraining Order attorney George H. Ramos, Jr. will ensure that the opposing party is properly served on all matters requiring notice and that proof of service is filed with the court in order to guarantee the enforceability of a TRO and to make sure that your rightful request for a permanent restraining order is not denied due to a procedural error.
The Court Hearing
On the day of your scheduled hearing for the permanent restraining order, the facts are litigated before the judge. This means all parties testify under oath, with George H. Ramos, Jr., cross-examining the opposing side. After both parties are given the opportunity to be heard, the judge will decided whether to grant the order as well as the types of restrictions to include and the order’s effective length. San Diego Restraining Order attorney George H. Ramos, Jr. will be right by your side, aggressively representing you to ensure not only that the order is granted, but also, that the protection of the order is to the extent you want and need.
If you are the victim of abuse or harassment, contact George H. Ramos, Jr. & Associates now to obtain court ordered protection that could potentially save your life.
Will the Courts Always Grant a Restraining Order Request?
No. restraining orders are not a guarantee in the state of California. Instead, both sides of the matter will have an opportunity to state their cases in front of a judge. The judge will listen to both sides and review the presented evidence, and then decide whether or not to grant the order. Making the most of your court opportunity to get a ruling in your favor can be the best way to fight a restraining order. Hiring a lawyer to represent you can be your top chance of refuting a restraining order, or at least to minimize the restrictions involved.
Rights a Restraining Order Can Take from You
Avoiding a restraining order is always better than any of the alternatives. Always do what you can to prevent someone from filing a restraining order against you in California. When this isn’t possible, it’s vital you know what you can and cannot do with an order in effect against you. Your rights will depend on the type of restraining order, but some of the basic rights you might lose include:
- The ability to go certain places
- The ability to do things you usually do
- The ability to see certain people, friends, relatives, and pets
- The ability to go to work or continue your employment
- Your right to live in or near your home
- Your parental and custodial rights
- Your right to visit or see your children
- Your right to own a gun
- The ability to alter insurance policies
- The ability to make large purchases or alter your property
- Your right to stay in the country, if here with a visa or green card
Of course, there is always the risk of breaching the terms of a restraining order and getting into even more legal trouble. Doing something you’re not supposed to with a restraining order against you could easily result in fines, imprisonment, and/or other serious legal consequences. If you find yourself facing a potential restraining order in San Diego, hire a defense attorney immediately.
Rights a Restraining Order Cannot Take from You
There are limitations to what a restraining order can do. Even if the person filing the order has a real case and evidence against you of something such as stalking or domestic violence, a restraining order is not a criminal charge. It will be up to the state or county to pursue charges against you for the alleged crime that resulted in the restraining order request.
A restraining order also cannot dissolve a marriage. A restraining order might have the power to keep a husband or wife apart and not communicating, but it does not constitute a divorce. Note, however, that in states other than California, a separation for a certain period of time or a spouse committing a felony can be grounds to file for divorce. Since California is a no-fault state, neither spouse needs to prove the other’s fault to file.
Finally, a restraining order cannot establish paternity of children with the person on the receiving end of the order unless both parties have agreed to parentage of the child(ren) involved. In other words, just because someone files a restraining order against you forbidding you to see or interact with children does not automatically make you the parent of the children involved. It may only establish parentage if both parents have agreed to allow the court to enter such a judgment.
ARE RESTRAINING ORDERS ENFORCEABLE?
Yes. Once the Court has approved a request for a restraining order, the protected person(s) can enforce the order by reporting every violation to the Court and law enforcement agency with jurisdiction over the case. The stay-away order will be of no use unless it is enforced by reporting violations to authorities. If a person ordered to stay away from an individual named as protected in a restraining order is within the restricted vicinity and the police are summoned, the defendant WILL be arrested and taken to jail. A restraining order violation is a serious criminal offense and is punishable by jail time, fines, anger management classes, mandatory counseling, and an additional charge of contempt of court could be applicable. If you have been accused of violating a restraining order and there is an authorized warrant out for your arrest, contact our experienced San Diego arrest warrant attorneys today.
DEFENSE AGAINST RESTRAINING ORDERS
Given the sensitive and serious nature of restraining orders, it is wise to consult with a San Diego defense lawyer. Speaking with the proper lawyer will inform you of your rights as well as preserve any possible remedies you may have.
While restraining orders are valuable tools necessary to protect victims of abuse or harassment, many times they are wrongly issued against individuals innocent of conduct that would warrant such an order. However, even if you have been unjustly served with a TRO, it is imperative that you still abide by all restrictions, because the order will stay effective until the date of your court hearing.
Filing a Response
After being served with a TRO, it is important to respond. This allows the judge to hear your side of the story prior to the hearing. At George H. Ramos, Jr. & Associates, our experienced San Diego Restraining Order attorney will file a response on your behalf, challenge each allegation, line by line, in the most effective manner. Upon filing your response with the court, he will also ensure that the petitioner is properly served with the response in accordance with required procedure.
The Court Hearing
The 14th Amendment guarantees your right to a court hearing before a temporary restraining order can become permanent. However, if you are on notice of the hearing and fail appear, the permanent restraining order may be granted and entered by default. Therefore, it is in your best interests to be present at the hearing.
For each type of restraining order, there are different elements that must be proven. The petitioner carries the burden of meeting the standard of proof required for the issuance of that order. Domestic violence restraining orders require a preponderance of the evidence, and civil harassment restraining orders require clear and convincing evidence.
During the hearing, you will also be given the opportunity to be heard and to cross-examine witnesses. Having an attorney present to advocate on your behalf can significantly impact the outcome of the hearing. San Diego Restraining Order attorney George H. Ramos, Jr. is a seasoned defense attorney with substantial experience and a thorough knowledge of restraining orders. Given his qualifications, he has the ability to both aggressively and effectively rebut the petitioner’s case and provide you with the best defense available.
The outcome of a hearing on a permanent restraining order can potentially affect the next five years of your life, and if the order extends the negative impact could last even longer. Don’t take the risk.
Ask a Lawyer for Help with Your California Restraining Order
To learn more about the restraining order process, get help receiving an order, or find assistance defending yourself against an order, contact us. These cases are complex regardless of which side you’re on. Attention from experienced San Diego attorneys can make a big difference in how your case ends. We’re here to offer our best legal advice during a free consultation in San Diego.