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Can I Challenge a Domestic Violence Restraining Order in California?

Posted on in Domestic Violence

San Jose domestic violence defense attorneyIn some divorce cases, the hostility between the spouses can become extreme and lead to domestic violence protective orders against one or both partners. In California, these protections (also referred to as restraining orders) are court orders that protect a person from being physically or sexually abused, stalked, harassed, or threatened.

Under California law, restraining orders can be requested for various reasons. Unfortunately, not all of them are legitimate. For example, a person may falsely accuse his or her spouse of domestic abuse out of anger or revenge. In other situations, a parent may want to prevent the other parent from seeing their children for personal reasons rather than safety-related concerns. However, it is possible for a protective order to be amended or dismissed entirely if the court finds it invalid or inappropriate. 

Who Is Entitled to Orders of Protection?

The relationships that are eligible for domestic violence restraining orders include:

  • Married couples;
  • Domestic partners;
  • Divorcees;
  • Dating or formerly dating couples;
  • Two people who share a child or children; and
  • Two people who currently live together or formerly lived together.

There must be a relationship between the alleged abuser and the victim for the matter to be considered under California’s domestic violence laws.

What Does a Restraining Order Do?

A restraining order gives restrictions on what a person can or cannot do. For example, these directives can include such orders as no contact, stay away, move out, and other requirements. It is important to note that a violation of a protective order is a crime with penalties ranging from fines to imprisonment. It is also considered civil contempt of court.   

The individual to whom the restraining order is issued against can also face other significant limitations, such as:

  • The person might be prohibited from going to specific places or doing certain things;
  • The person could have to move out of his or her home;
  • The person might not be allowed to see his or her children;
  • The person will likely not be able to own a gun; and
  • The person’s immigration status may be affected if he or she is trying to obtain a green card or a visa.

How Do I Challenge a Protective Order?

If one or both parties want to change (modify) or end (terminate) any part of the restraining order, they can file a motion in court before the protective order expiration date. In California, Form FL-300 must be filled out to request any sort of change or termination. After filing the motion, the court decides if a hearing is warranted. If the court schedules a hearing, the requesting party must gather documents, recordings, or witnesses in support of his or her case to dismiss the protective order. He or she can present this evidence to the court with the help of a knowledgeable domestic violence attorney. 

If the motion is granted, the protection order will be voided and unenforceable starting at that moment. It is important to note that even if both parties reconcile and wish to stop the restraining order, the judge will not rescind the order if he or she feels that doing so is not appropriate. 

Contact a San Francisco Domestic Violence Defense Attorney

Domestic abuse can occur for many reasons, and it often results in protective orders being issued against one or both partners. At the Law Offices of Erik Steven Johnson, we understand how a restraining order can affect your personal and professional life. Our compassionate Palo Alto orders of protection defense lawyers will carefully examine the circumstances that led to the order in the first place. Then, they will build a strong case for the order to be terminated. Call our office today at 408-246-3004 to schedule a free consultation. 

 

Source:

https://www.courts.ca.gov/1260.htm

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