Orders of Protection

An Order of Protection is a court order which is issued in order to help prevent abuse, harassment, violence or stalking from continuing to occur. The victim in this case would seek an Order of Protection as a way of preventing the accused (a current or former spouse, partner or family member) from further acts of violence, threats or abuse.

If you are seeking to obtain an Order of Protection, an attorney will be invaluable in helping you. It can be confusing and complex to try to obtain an Order of Protection, and an attorney can help you by requesting the Order and representing you at a hearing to prove the necessity of this for your protection.

At the Samuel Maverick - Attorney at Law, we are experienced in helping clients throughout California who need assistance with an Order of Protection. We understand how important these orders are and that they are vital in order to help the victims of abuse, stalking and domestic violence. We have over fifteen years of combined legal experience in helping families with divorce and family law issues, and we take on cases throughout San Jose California. By consulting a San Jose family law attorney at our firm, you will get the honest and valid advice of a professional who actually cares about the outcome of your situation.   

Who Can File for an Order of Protection in California

In California, you can file a petition in Family Court for an Order of Protection if:

• You are related to the Respondent by blood or marriage
• You are or were legally married to the Respondent
• You have a child with the Respondent
• You are or were in an intimate relationship with the Respondent

Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship."

If you need an Order of Protection against someone else, you can only get one through Criminal Court.

What Can I Ask For in My Petition

Most temporary Orders of Protection say that the respondent must not assault, menace, or harass you, but you can ask for additional terms. Additionally, You can ask for:

1. Stay away: The court can order the respondent to stay away from you, your home, your job, your children, your children's school or any other place or person the court finds necessary.
2. Refrain from certain acts: The court can order the respondent to stop abusing or threatening to abuse you or your children. The order can be specific, such as, ordering the respondent to stop calling you at work.
3. Collect your belongings: If you do not want to return home, you can ask the court to allow you to enter your home with the police to collect your personal belongings at a certain date and time.
4. Exclude the respondent from the home: If the respondent is dangerous to you or your children, you can ask the court to order the respondent out of the home ("excluded") while the order of protection is in effect. It does not matter that the home is not in your name.
5. Temporary child support: The court can order temporary child support based on the needs of the child. You do not have to show how much money the respondent has or earns. Since the child support is only temporary, you will still have to file a separate petition for child support. You can do this on the 1st floor of the Family Court. The case will be heard by a Support Magistrate in about two or three months, but you can get support back to the date you filed the petition.
6. Revoke or suspend firearms: The court can revoke or suspend respondent's license to carry firearms or order surrender of any or all firearms owned or possessed by respondent.
7. Five year order: Most Family Court orders of protection are for two years. You can get a five year order of protection if there are "aggravating circumstances", or if the court finds there was a violation of an order of protection. Aggravating circumstances exist where there is physical injury, the respondent used a weapon or other dangerous instrument against you, there is a history of repeated violations of prior orders of protection, the respondent has been convicted of crimes committed against you in the past, there is exposure of any family or household member to physical injury, or other behaviors that pose a danger to you, your family or other household members.

Refrain-From and Stay-Away Orders of Protection in San Jose

In San Jose California, an Order of Protection will typically include one or both separate orders:

• Refrain-From Order: This Order prohibits the accused from engaging in certain behavior, such as threats, assault, harassment or violence toward the victim.
• Stay-Away Order: This Order prohibits the accused from coming within a certain distance of the victim as well as the victim’s residence and place of work. This may include provisions regarding staying away from children that the victim and the accused share.

What is the Difference Between a Temporary and Final Order of Protection

A temporary order of protection is issued on the day you file for an order of protection before the respondent is served with the papers. It only lasts until the next time that you are in court. The court usually will extend the temporary order at each court date until the case is over. If a final order of protection is issued, this occurs at the end of the case after the Judge finds that a family offense was committed or the respondent agrees. A final order lasts for two or five years. A final order of protection can also include:

1. Restitution: If the respondent damaged any of your property (e.g. car, windows, furniture), the court can order the respondent to pay damages ("restitution") up to $10,000. You will have to prove the value of what was damaged.
2. Medical expenses: The court can order the respondent to pay for any medical expenses arising from the abuse.
3. Participation in a Program: The court can order the respondent to participate in services, such as a batterer's education program, or make referrals for drug or alcohol counseling.

If you have any questions or would like to schedule a FREE initial consultation with one of our experienced attorneys, please Contact Us online or call at (408) 442-9591 today!