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Domestic Violence and Criminal Protective Orders
Domestic violence crimes may be met with a variety of protective orders. Most commonly, a court-issued criminal protective order or a victim requested restraining order will follow a domestic violence dispute. In the instance of arrest, the defendant may be served a criminal protective order at their arraignment. In addition, a domestic violence restraining order can be requested by a victim outside of any domestic violence case. Furthermore, an emergency protective order can be ordered at the time of the defendant’s arrest if the police deem the order necessary. The protective and restraining orders are preventatives measure put in place to ensure the safety of the victim and prevent further acts of violence.
Domestic Violence Protective Orders
The victim of a domestic violence crime can independently seek the protection of the court by requesting a domestic violence restraining order. In order to seek a domestic violence restraining order independently, the victim must file a petition at a civil court. Typically, civil courts are used to settle disputes between two entities including private citizens, as is the case with the issuance of a domestic violence restraining order.
Most often, the filing fee for victims of domestic violence will be waived by the court. Once the petition has been requested, the court must schedule a hearing for the request of the domestic violence restraining order. In addition, the court has the ability to issue a temporary restraining against the defendant that would remain valid until the court hearing.
Upon the filing of the petition, the defendant will then be notified of the court hearing date and served with the petition against them. The defendant, also known as the respondent, can choose to have representation at the civil court hearing and contest the order. The court may allow the respondent to extend the hearing until a formal decision is made in criminal court regarding the domestic violence case.
During the hearing in civil court, it is the petitioner’s responsibility to provide evidence to support his or her case. While in criminal courts, guilt must be proven beyond a reasonable doubt. The petitioner may provide evidence, as well as a testimony for the judge. In addition, the petitioner may prevent evidence to the court. The judge will determine if enough evidence has been presented to grant the domestic violence restraining order. If approved, then the respondent will be required to enroll in a 52-week batterer’s program.
Criminal Protective Orders
Criminal Protective Orders are imposed by the court not the victim. California Penal Code Section 136.2 PC entitles the court to be able to issue a protective order against the defendant charged with a domestic violence offense. The defendant may be required to appear in court in order to be served the protective order. Under the order, the defendant cannot possess firearms. In addition, the order may allow “peaceful” contact between the two parties or it may prohibit contact entirely.
A criminal protective order may be established even in the absence of a domestic relationship between the parties. Under California Penal Code Section 368 PC, elder abuse cases may be issued a criminal protective order, regardless of the relation between the two parties. For instance, the defendant could be a non-relative caretaker. In instances like these, the defendant’s attorney is allowed to argue against instituting a protective order.