Protective Order vs Restraining Order: What is the Difference?

Protective orders and restraining orders are similar in that they are intended to protect an individual from the harmful conduct of another, but in California, they serve different purposes. Many people use the terms protective order and restraining order interchangeably, yet the two orders are different, separate, and distinct in the law in both criminal and civil matters.

If you or your loved ones must be kept safe from someone else, you might need a protective or restraining order as per your circumstances.

Criminal vs. Civil Orders

The first and main difference between protective order vs restraining order lies in the legal context^[1] in which they are derived. 

Protective orders are issued by criminal cases and have to do mostly with domestic violence and other related forms of abuse and are enforced by the prosecution. 

On the other hand, restraining orders are filed in civil court and can be used in harassment, stalking, or disputes between individuals who do not have a close relationship. 

Both orders can severely limit contact, communication, or physical proximity between individuals, but the legal process to obtain and enforce them is different.

What is a Protective Order?

A protective order in California is a court-issued directive designed to prevent harm or threat from an individual, often in situations involving domestic violence cases, abuse, or criminal activity. These orders are typically part of a criminal case^[2], ensuring that the accused cannot contact or set about protecting mortals. 

Such orders may be made out at different levels of legal proceedings, such as during an investigation or after a conviction, depending on the severity of the threat posed.

California law provides various forms or types^[3]of protective orders, including emergency protective orders, which law enforcement policemen can receive to provide prompt protection, and temporary protective orders which remain in place until a formal hearing is conducted.

What is a Restriction Order?

Restraining order is a court order that legally restrains a person from approaching, threatening, harassing, or engaging in any violent act against another person. Such an order can come from a broader set of circumstances, as opposed to a protective order, which must be obtained through civil court.

A restraining order in California is divided into several categories. These include:

• Domestic violence restraining orders protect against abuse by a spouse, former partner, or family member. 
• Civil harassment restraining orders^[4] apply when the restrained person is not a close family member but presents a threat through continuing harassment or threats.

Protective Order vs Restraining Order: Application Process and Requirements

The process of receiving a protective order is different. Subsequently, law enforcement officers and prosecutors almost always petition for criminal protective orders in such cases of domestic violence or threats. These orders are, as a result, issued most of the time automatically when such a case appears before a criminal court.

On the other hand, restraining orders require the person seeking protection to file a petition^[5] in civil court. The petitioner must present evidence of harassment, abuse, or threats and appear before the court. If the judge believes the claims are valid, a temporary restraining order may be issued until a formal hearing determines whether a long-term order is needed.

Duration of Protective Order and Restraining Order in California

In California, the duration of protective^[6] order vs restraining orders varies based on the type of order:

• Emergency Protective Orders (EPOs): These are issued by law enforcement and usually last up to 7 calendar days.
• Temporary Restraining Orders (TROs): Such orders last until the court hearing, usually within 20-25 days.
• Restraining Orders After Hearing: These can stay up to 5 years. If no end date is specified, the last 3 years can be extended.

Violating A Restraining Order or Protective Order in California

Violating a protective or restraining order in California is a serious offense with significant consequences. The following are the principal points:

• Misdemeanor Violation: Violation of a restriction order is usually a misdemeanor punishable by a fine, probation, and/or jail time. The consequences may be up to 1 year in the county jail and a fine of up to $1,000^[7].
• Felony Violation: If the violation involves violence, threats of violence, or injury, or if you have previous convictions for violating restraining orders. Violation punishments such as felonies can extend to 3 years in jail or prison and a fine of up to $1,000.

Protective Order vs Restraining Order: Can They Be Modified or Extended?

Under some conditions, protective and restraining orders can be changed or extended. If the situation changes, a party may seek a modification of the order so that the terms of the order are changed. This may mean changing restrictions in place on contact, residence, or communication.

For those who want to be protected further, restriction orders can be extended beyond the date of their expiration. The application for extension must be filed before the current order expires, and the petitioner must show a continued threat or risk. The court will consider the need to extend the order based on the evidence presented.

How to Fight a Protective Order or Restriction Order in California?

If you believe the court order is unjust or unjustified, then you can appeal. Here is how you do it:

• Gather Evidence: Collect all evidence that proves that the allegations brought against you are false or overstated.
• Hire a Los Angeles Criminal Defense Lawyer: A Los Angeles criminal defense lawyer can assist you in presenting a strong case.
• Follow the Court Order Until the Hearing: Even if you believe the order is unfair, violating it before your court date can lead to criminal charges. Strictly comply with all terms, including no-contact provisions, stay-away distances, and firearm restrictions.
• File a Response (Form DV-120 for Domestic Violence Cases): If you receive a Domestic Violence Restraining Order (DVRO)^[8], you should file a Response to Request for Domestic Violence Restraining Order (DV-120) before your court hearing.

Knowing the difference between protective and restraining orders allows individuals to make good decisions. Although both are safety orders, their application, duration, and enforcement are totally different.