San Jose Family Law Attorney Discusses Family Law Restraining Orders
For obvious reasons claims of domestic violence are taken very seriously in the family court. Unfortunately some people choose not to fight a restraining order without understanding that doing so will prejudice their custody rights and potentially have a negative impact on their immigration status or job prospects. A restraining order is usually generated in one of two ways. In the more serious of the two circumstances there is some argument between the spouses that leads to either someone in the household or in the neighborhood calling the police. When the police arrive the alleged victim will tell the police that he or she is afraid for his or her safety or if there is some visible injury such statements will not even be necessary. The police can then offer the alleged victim an immediate emergency protective order which is obtained by calling an on call judge and relaying the circumstances. This type of criminal protective order lasts for five days in order to give the alleged victim time to file a request for a civil restraining order. The police at their discretion will decide whether or not to arrest the alleged abuser. If an arrest is made then a police report and request for charges will be sent to the District Attorney’s Office and at their discretion charges will issue. If charges do issue then another criminal protective order of a longer duration may also issue in criminal court.
A request for a restraining order can also be requested if there has never been any police involvement. This occurs by filing the request for a Temporary Restraining Order (TRO). This request is made in writing and submitted to the Court where it will go to a Judge who will make a determination as to whether or not it will be granted. At this time notice will not be given to the opposing party so the Judge will make the determination on the alleged victim’s writing alone. If it is granted the TRO will last only until a hearing can be held on the request for a restraining order which typically happens in about 14 days. The alleged abuser must be served with the initial request for the TRO and is given an opportunity to respond in advance of the court hearing.
At the time of the hearing the alleged abuser is asked whether or not they agree to the granting of a restraining order. Some people consent because they do not want to argue about it in court and because they do not want further contact with the alleged victim so they do not fight it. The problem is that they do not realize the consequences of consenting to a restraining order. Under Family Code Section 3044 a restraining order can prevent the restrained party from having sole or joint custody of their children. In addition it can very severely impact other custody and visitation rights. Additionally it is also important to consider your immigration status and/or your job prospects before agreeing to a restraining order. If you are applying for a visa, a green card or for U.S. citizenship having had a restraining order could negatively impact your chances. It is also important to consider your career goals because if you are considering applying for a job where you need a security clearance or where a background check would be run having had a restraining order could hurt your chances. Additionally you cannot own a firearm during the time the restraining order is in effect so that would bar approval for most law enforcement jobs.
If you need to defend a restraining order in family court or if you need a restraining order for your protection please contact our office for a free consultation where we can advise you of your options. We have offices in San Jose, Fremont, and Monterey where our team of family law attorneys would be happy to go over your rights and advise you how to proceed.