Fighting a Restraining Order

Restraining OrderIf you have been served a restraining order in Orange County, you have legal rights and options to fight the restraining order and the allegations against you, and to present your side of the story. Restraining orders, also called protective orders, can be unfairly or not legally issued, or you may be falsely accused of violating the order.

It is a crime to violate the terms of a protective order, regardless of whether you think it is fair or the charges are true. You have the right to defend yourself if you have been served a restraining order or charged with violating a restraining order.  The protective order must be legally issued, you must know the restraining order exists, or you must have intentionally violated it to be guilty of violating an order.

It is important to hire an attorney to help you respond to and defend a restraining order. There is a legal process with the courts you must follow. Your attorney will respond to the restraining order, present evidence of your behalf, assist and advise you on following legal or court procedures to protect yourself, and will appear with you in court during the hearing about the court order.

Your Rights When A Restraining Order is Issued

You have the right to be notified of the restraining order and to read a copy of the order. You have a right to be represented by an attorney before a judge. You have a right to respond to the court about the charges, to have a court hearing related to the order, and you have the right not to say something that may incriminate you. You also have the right to present evidence or witnesses in your defense. You are not entitled to a jury trial.

What You Should Do if a Restraining Order is Filed Against You.

If you have been served with a protective order:

  • read the order carefully and immediately abide by the orders detailed in it. Violating the terms of the order may cause you to be arrested and face jail time and / or fines.
  • keep your emotions under control. It may be difficult for you to obey the orders, especially if they are unfair or unfounded but it is important not to act on the emotions of the moment.
  • do not contact the person who requested the restraining order in any way.
  • contact an attorney who can advise you on protecting your rights, help you prepare a response, and gather evidence for your court hearing.
  • understand exactly what behaviors qualify under the orders. Your attorney can advise you.
  • surrender your firearms to law enforcement. Most protective orders prohibit you from possessing firearms while the order is in effect. Consult with your attorney about the process.
Penalties for Violating a Restraining Order

Conviction for violating a restraining order is generally a misdemeanor carrying a potential penalty of a maximum of one year in county jail and a fine up to $1000.

Violating a restraining order a second time may make the offense a wobbler – meaning the prosecutor could file the charge against you as either a misdemeanor or as a felony. If convicted on a felony charge you could face 16 months to 3 years in prison and a $10,000 fine, depending on the circumstances surrounding the violation.

About Restraining Orders

A restraining order is a court order requiring you to follow certain orders about your conduct toward another person. It may require you to stay away from another person or place.

Restraining orders are designed to protect an individual from some sort of harm or perceived threat. They order a “restrained” person to stop a specific act or behavior involving the “protected” person. While each individual order will dictate the exact behavior that is prohibited, the order will likely include preventing personal contact with the individual (including email, texting, and social media). The order may prohibit you from coming within a certain distance of the person.

A protective order may specifically prohibit you from things like:

  • threatening the peron
  • harassing him or her
  • disturbing the peace of that person
  • going to a place where the person lives, works or goes to school.

Having a restraining order in effect against you has implications for your every day life: A protective order can:

  • prevent you from being in certain places
  • limit your ability to see your children or other loved one
  • prevent you from possessing or purchasing a gun while the order is in effect
  • affect your immigration status or visa
  • impose financial obligations on you
  • require you to release possession of property
  • or order you to relinquish rights to a cell phone number.

In cases where domestic violence or abuse is alleged a restraining order may require you to move out of your home taking only your personal belongings until there is a court hearing.

Categories of Restraining Orders

There are four general categories of restraining orders in California. Each type could contain:

Personal Conduct orders in which the court orders you not to engage in certain behaviors, such as contacting the protected person, harassing or threatening the person, assaulting them, or destroying their property or disturbing the peace of the person.

Stay-Away orders which prohibit you from coming within a certain distance of the protected person or locations that person frequents. This may include home, workplace, school, childcare locations, vehicles, or other places.

Residence Exclusions orders which require you to move out of the residence where the protected person lives.

A Domestic Violence Restraining Order
A domestic violence restraining orders are court orders filed to prevent potential or repeated acts of abuse or battery against a close family member such as a spouse or ex-spouse, domestic partner, dating or cohabitating person, or a parent or child if there is suspected child or elder abuse. Acts of abuse are generally defined as:

  • intentional or reckless causing or attempting to cause bodily harm
  • sexual assault
  • reasonable fear of imminent bodily harm to another person
  • attacking, molesting, stalking, or otherwise threatening another person
  • keeping a person from coming and going freely

Domestic violence restraining orders can also be issued to prevent you from destroying personal property or disturbing the peace of a close family member.

In cases where the prosecutor has filed domestic violence criminal charges, the criminal court may order a criminal protective order against the accused while the case is going on. If found guilty of the criminal charges, the protective order may remain in effect for up to 3 years after the case is closed.

Elder or Dependent Adult Abuse Restraining Order
This kind of restraining order is filed to prevent acts of physical or financial abuse of persons 65 or older, or adults 18-64 who have certain physical or mental disabilities. Acts of elder or dependent adult abuse can include neglect, abandonment or emotional or mental abuse.

Civil Harassment Restraining Order
This type of protective order prohibits acts of harassment defined as stalking, assault or battery, sexual assault, serious harassment or credible threats from a friend, neighbor or a more distant family member. A credible threat of violence is saying or acting in a way that a reasonable person would fear for their safety.

Levels of Restraining Orders

There are three basic levels of restraining orders a court may issue in California:

  1. An Emergency protective order is intended to protect someone in immediate danger. They go into effect immediately and can stay in effect for up to seven days.
  2. A Temporary restraining order usually stay in effect for up to 25 days and are intended to protect a person between the time the order is issued and when a court hearing can be scheduled.
  3. A “Permanent” restraining order is issued after a court hearing on a temporary restraining order and can last up to five years. The permanent restraining order can be renewed for additional 5-year periods.


The attorneys at the Law Offices of David Stein are available for a no-cost consultation about any criminal matter. With years in Orange County criminal defense, we have the experience and relationships with prosecutors to help you get the best possible outcome. Call us today at (949) 445-0040 or email us confidentially online today.