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Domestic Violence

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Domestic Violence Restraining Orders

A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone with whom they have a close relationship.

You can ask for a domestic violence restraining order if:

 

  1. A person has abused or threatened to abuse you;  AND

  2. You have a close relationship with that person. 

 

"Close Relationships" is defined as one of the following:

 

  • Married or registered domestic partners,

  • Divorced or separated,

  • Dating or used to date,

  • Living together or used to live together (more than roommates),

  • Parents together of a child, OR

  • Closely related (parent, child, brother, sister, grandmother, grandfather, in-law).

 

Suppose you are a parent and your child is being abused. In that case, you can also file a restraining order on behalf of your child to protect your child (and you and other family members). If your child is 12 or older, they can file the restraining order independently.

In case you do not qualify for a domestic violence restraining order, there are other kinds of orders you can ask for.

 

At Law Office Jame Chau, we are here to help you understand restraining orders and what your options are.

 

A restraining order is a legal order issued by a judge. A restraining order can prevent the restrained person from contacting or going near you, your children, other relatives, or others who live with you. 

A restraining order may also do the following:

  • Order a person stay away from your home, work, or your children's schools, 

  • Move out of your house (even if you live together), 

  • Not have a gun, 

  • Follow child custody and visitation orders, 

  • Pay child support, spousal or partner support (if you are married or domestic partners), 

  • Stay away from any of your pets, 

  • Transfer the rights to a cell phone number and account to the protected person, 

  • Pay certain bills, 

  • Not make any changes to insurance policies, 

  • Not incur any large expenses or do anything significant to affect your or the other person's property if you are married or domestic partners, 

  • Return certain property, 

  • Complete a 52-week batterer intervention program.

 

What a restraining order CAN NOT do


A restraining order cannot end your marriage or domestic partnership. 
A restraining order cannot establish the parentage (paternity) of children UNLESS you and the retrained person agree to the parentage of your child and agree to the court entering a judgment about parentage.


Types of Domestic Violence Restraining Orders


Emergency Protective Order (EPO)


An EPO is a type of restraining order law enforcement can request by contacting a judge in a criminal court setting. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night.


The emergency protective order starts immediately and lasts up to 7 days. After that, the judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.

Temporary Restraining Order (TRO)


To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a "TRO"). When you go to court to ask for a domestic violence restraining order, you fill out paperwork to tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, they will give you a temporary restraining order.


Temporary restraining orders usually last between 20 and 25 days until the court hearing date.


"Permanent" Restraining Order


When you go to court for the scheduled hearing for your TRO, the judge may issue a "permanent" restraining order. However, they are not really "permanent" because they usually last up to 5 years.


At the end of those 5 years (or whenever your order runs out), you can ask for a new restraining order, so you remain protected.


Criminal Protective Order or "Stay-Away" Order


Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.

At Law Office James Chau, we are here to help you understand your options to address domestic violence concerns.

The Law Office of James Chau, P.C., represents clients in San Jose, California, and all of the surrounding areas.

For more information and to schedule a personal consultation with the Law Offices of James Chau, P.C., please contact us online or call our San Jose, California office at 669-301-0807.

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