One of the most immediate and significant implications of a domestic violence charge or arrest is related to the issuance of a criminal protective order, commonly known as a "stay away order" or "restraining order." The type of order and its effect on your ability to live with your partner depends on how and when it was issued, but criminal protective orders can prevent you from seeing your partner, require you to move out of your home, or even preclude you from being with your children.
Here is an example of a typical timeline for a domestic violence case and the associated orders under California Law: Let's imagine a couple gets into an argument one evening, leading someone to call 911. The police respond to the scene, take statements from both parties, and arrest one of them.
After the arrest, the police will ask the victim if they would like a judge to issue an emergency protective order or "EPRO." If the victim requests an emergency protective order, the officer typically contacts a judge to describe the situation and inform them of the victim's request. If the judge grants the order, the officer will serve a notice to the arrested person, informing them that they are prohibited from having any contact with the victim for a specified period.
An emergency protective order is temporary, valid for up to seven calendar days. While the order is in effect, the restrained person (the one who was arrested in this example) must not have any contact with the victim. If no further action is taken at the end of the specified period, the order will automatically expire.
Continuing with the example above, let's say the district attorney reviews the police report associated with the arrest the following morning and decides to press charges against the arrested person, who becomes the defendant. The defendant appears in court the next day for an arraignment, where the judge typically addresses the issue of a protective order. After filing the case, prosecutors usually request a protective order, even if the victim initially declined or it wasn't originally issued by the judge.
It's important to note that victims in domestic violence cases may not always want the defendant to be prevented from contacting them. However, unless the victim appears in court or informs the judge of their preference, the prosecutor and judge will assume that the victim desires legal protection from the defendant and will issue a criminal protective order. If a criminal protective order is issued in a criminal case, the judge usually makes it effective for several years. However, in practice, the order will likely remain in place until the case is resolved, at which point it will be terminated completely or replaced by another order after sentencing, depending on the case's outcome.
If you or your partner's goal is to maintain contact while a domestic violence case is pending, it is essential to hire a criminal defense attorney with knowledge of the procedural aspects of domestic violence cases. Often, it is possible for the victim to appear in court during the arraignment to inform the judge of their preferences regarding a criminal protective order. If the victim appears in court and expresses no concerns for their future safety while desiring to continue living with or having contact with the defendant, the judge will often respect their request and decline to issue any orders. Alternatively, if an order has already been issued, a criminal defense attorney can contact the victim, ascertain their preferences, and address the protective order on a future court date.
An important distinction among criminal protective orders lies between "no contact orders" and "peaceful contact orders." As the name implies, a no contact order prohibits any form of communication—telephone, personal, written, or electronic—with the protected party. Additionally, they must not be near their home or place of business. On the other hand, a peaceful contact order often allows the couple to remain together during the case, as long as there are no arguments and their interactions are peaceful. If the judge has already issued a no contact order in a criminal case or is considering it for the first time but the accusations are serious, judges are more inclined to issue a peaceful contact order instead of completely declining a protective order.
The laws regarding domestic violence and protective orders are complex and can have significant consequences for you, your relationships, and your family. If you or a loved one has been arrested or charged with domestic violence, I encourage you to schedule a free consultation with me. I can guide you through the specifics and help you get the best outcome possible given the situation as it applies to criminal protector orders.