Information about Criminal Protective Orders and Civil Restraining by rrboy

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									                         Information about
                     Criminal Protective Orders
                    and Civil Restraining Orders
What is a Criminal Protective Order?
A Criminal Protective Order is issued by a Judge in Criminal Court (Hedding Street in San Jose or Palo Alto or San
Martin) to protect someone from a “Restrained Person.” It may be issued after the Defendant (the
Restrained Person) is arrested, charged or found guilty of certain crimes against the Victim. The case is
filed by the District Attorney’s Office on behalf of the People of the State of California . The District
Attorney’s Office is the prosecutor. Criminal Protective Orders may include stay-away orders, no contact
or peaceful contact orders. The expiration date is listed on the Criminal Protective Order.

What is a Civil restraining order?
A Civil Restraining Order is issued by the Superior Court to protect someone. Civil restraining orders
may include stay-away orders, no contact or peaceful contact orders. The expiration date is listed on
the order. If the date is not on the order, the order expires in 3 years. In this case, the lawsuit is filed
by the Victim and the other party is the Restrained Person. The District Attorney is not involved in this
lawsuit.

What are the differences between Criminal Protective Order’s and Civil
restraining orders?
                                      Criminal Protective                     Civil restraining order
                                      Order
Who files for the Order?              The District Attorney                   The Protected Person
What Court grants this kind of        Criminal Court on Hedding St in San     Family, Juvenile and other Civil
order?                                Jose, Palo Alto or San Martin           Courts
How long can it last?                 Up to 3 years (it may end early if      Up to 3 years (and can be renewed
                                      the court’s jurisdiction ends)          at Protected Person’s request before
                                                                              it expires)
What if it’s violated? (Penal Code    Possible arrest, parole or probation    Possible arrest, prosecution and
§273.6)                               violation, prosecution and conviction   conviction
How does it end?                      It expires at the end of probation,     It expires at the date printed on the
                                      parole or the expiration date on the    Civil order unless the order has been
                                      Criminal Protective Order, whichever    extended by the Court.
                                      comes first (note: this can be much
                                      shorter than 3 years)

Can I have both kinds of Orders?
You can. People often do. If you are the Protected Person it may be a good idea to ask for a Civil
restraining order even if you have a Criminal Protective Order because the Criminal Protective Order can
expire for reasons beyond your control. A Civil restraining order doesn’t expire “early” unless it is
ordered to expire by the Court following a hearing.

Which order has priority?
A Criminal Protective Order always has priority over a Civil restraining order (Penal Code §136.2).


CR-6000 REV. 1/05                                                                                        Page 1 of 2
What if the orders are different?
It is important to know if your Criminal Protective Order and Civil restraining orders are different. If they
are different, the Criminal Protective Order will control. For example , if the Civil restraining order says
the Restrained Person and Protected Person can have contact with each other but the Criminal
Protective Order says “no contact,” then the parties can have no contact, even if the Civil restraining
order was issued later.

How can I make the orders the same?
Read the flier “How to Ask the Judge to Change Your Criminal Protective Order” to learn how to change
a Criminal Protective Order. For help applying to change a Civil restraining order or a Criminal Protective
Order you can visit the Restraining Order Help Center in the basement of Family Court, 170 Park Center
Plaza, San Jose (408-534-5709). They have a list of other agencies and referrals to attorneys that can
help, too. You can also find that list on our website – www.scselfservice.org.

What if the Protected Person and Restrained Person have children
together and I think there should be visits?
    §    First, make sure the Criminal Protective Order and/or Civil restraining order you have allows the
         parents to have contact for visits if you think there should be visits. You can do this by checking
         on the following:
    §    If you have a Criminal Protective Order that orders that the Restrained Person stay away from
         the Protected Person, make sure that boxes 3.g. or 3.h. on the Criminal Protective Order are
         checked (see attached sample). If they are checked then this is an exception to the Criminal
         Protective Order that allows the parents to exchange the children for visits if the Family Court
         Judge makes a visitation order.
    §    If boxes 3.g. or 3.h are not checked then you need to file a motion to change the Criminal
         Protective Order to allow contact for visits. If your children are protected on the restraining
         order and these boxes are not checked then visits are not allowed.
    §    If the Criminal Protective Order is changed to allow limited contact, follow the Court’s existing
         visitation order, if there is one, or apply to the Court for a new visitation order.
    §    If you have a Civil restraining order make sure that there is an exception for peaceful contact for
         court ordered visitations. This will either be written in or a box will be checked off that says this.

How do I get a Visitation Order or change the order I have?
    §    To do this, you can read the handout “Do You Want to Get or Change Custody and/or Visitation
         Orders?” available outside the Court’s Self -Service Center, visit the Court’s website
         (www.scselfservice.org), visit the Self-Service Center/Family Law Facilitator at 99 Notre Dame Avenue,
         San Jose, or a Legal Services provider or a private attorney. You can find referrals to Legal
         Services providers and attorneys at the Centers or on our website. They can help you open a
         new Family Law case if you don’t have one already or they can help you file to change the
         custody and visitation order you have already if it is not working for your family anymore.
    §    Again, make sure your Criminal Protective Order and/or Civil restraining order have an exception
         for the parents to have peaceful contact regarding visits or you may not be able to follow the
         visitation order you get.

Once we have a visitation order and our Criminal Protective Order or
Civil order allow for contact for visits, what else do we do?
Make sure to follow your orders very carefully – both the visitation and restraining orders. Don’t make
changes to either of the orders on your own with the other parent. If you think a change would be best
for your children, file a motion with the Court asking for the change. If you don’t do this, the Restrained
Person could be arrested when you didn’t think that parent was violating the Court order.



CR-6000 REV. 1/05                                                                                     Page 2 of 2

								
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