Understanding the Difference Between Restraining Orders and Protective Orders in California
In California, people often use “Restraining Orders” and “Protective Orders” interchangeably, but understanding their specific applications and legal implications is crucial. Both orders, which are judicial decrees, aim to protect individuals from unwanted behaviors like stalking, harassment, threats, or physical abuse. The court directs these orders at specific individuals, named in the orders, to stop them from engaging in harmful conduct.
Under California Penal Code Section § 273.6, violating the terms of a protective order is a criminal offense. Depending on the circumstances, such a violation can be classified as either a misdemeanor or a felony. Typically, a first-time violation, in the absence of other criminal charges, is treated as a misdemeanor. The consequences for a misdemeanor violation can include a fine of up to one thousand dollars ($1,000), a jail term of up to one year, or both.
While both restraining orders and protective orders aim to safeguard individuals from harm, they are distinct in their legal context and application. Restraining orders are generally used in civil contexts, whereas protective orders are more common in criminal cases. The choice between a restraining order and a protective order depends on the specific situation and the nature of the threat involved.
Criminal vs. Civil Orders
The key difference between protective orders and restraining orders lies in their issuance in either criminal or civil courts. This distinction is crucial for understanding how each order functions and the specific circumstances under which they are applied.
Criminal Protective Orders: In criminal cases, protective orders are typically requested by the district attorney on behalf of the victim. These orders are particularly prevalent in domestic violence cases. Here, the prosecuting attorney seeks a judicial decree to safeguard the victim from their abuser. The goal is to prevent further harm and ensure the victim’s safety while the criminal case is ongoing. It’s important to note that in these scenarios, the state, represented by the district attorney, takes the initiative to request the order, reflecting the seriousness of the criminal context.
Civil Restraining Orders: On the other hand, restraining orders are more common in civil matters and are requested by one of the parties involved in a civil dispute. These orders are frequently seen in family law cases, such as divorces or custody battles. For instance, a party in a divorce may seek a restraining order against their spouse to prevent harassment, ensure physical distance, or stop any other form of harmful behavior. The key aspect here is that the individual seeking protection takes the initiative to request the order, which is then considered and issued by a civil court.
Violating a Protective Order in California
In California, non-compliance with a protective order’s terms is a significant legal violation. Under Penal Code 273.6 PC, the consequences for the restrained person can be severe. To secure a conviction, the prosecution must demonstrate:
- A judge legally issued the protective order.
- The defendant was aware of the order.
- The order was intentionally violated.
Misdemeanor Charges: Typically, such violations are treated as misdemeanors, with penalties including:
- Up to one year in county jail, and/or
- A fine not exceeding $1,000.
Felony Charges: In certain cases, violations can escalate to felony charges, with more stringent penalties:
- Up to three years in state prison, and/or
- A fine of as much as $10,000.
Expiration of Protective and Restraining Orders in California
In California, courts issue both protective and restraining orders with specific expiration dates, and it’s crucial for all involved parties to understand these timelines.
Protective Orders: Typically issued in criminal cases, these orders often last as long as the criminal case is active. However, the duration can vary based on the case specifics and judicial discretion. Some protective orders may extend beyond the conclusion of the criminal case, especially in situations involving domestic violence or ongoing threats.
Restraining Orders: Restraining orders in civil cases vary in duration, depending on the order type and case circumstances. Temporary restraining orders (TROs) typically last a few weeks, often until a court hearing for a more permanent order. Meanwhile, permanent restraining orders can extend for several years.
