What is the Difference Between Civil and Criminal Orders of Protection?
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When individuals face threats, harassment, or violence, orders of protection can provide critical legal safeguards. However, not all orders of protection are the same. In California, orders of protection can fall into two primary categories: civil and criminal. Understanding the difference between these two types of protective orders is essential for anyone seeking safety or clarity in a legal dispute. At Foster Hsu, LLP, our San Jose domestic violence attorneys help clients across California navigate these important distinctions to protect themselves and their families.
Civil Orders of Protection
Civil orders of protection, often called restraining orders, are issued through the civil court system. These orders are typically requested by individuals who feel threatened or harassed and are seeking protection from someone with whom they have a specific relationship.
Key Features of Civil Orders of Protection:
- Initiated by the Individual: A person seeking protection (the petitioner) files a request in family or civil court.
- Common Situations:
- Domestic violence involving a spouse, former spouse, cohabitant, or dating partner.
- Harassment or stalking by an acquaintance or stranger.
- Abuse of elderly individuals or dependents.
- Types of Civil Restraining Orders:
- Domestic Violence Restraining Orders (DVROs): For victims of abuse in familial or intimate relationships.
- Civil Harassment Restraining Orders: For protection against non-family members, such as neighbors or acquaintances.
- Elder or Dependent Adult Abuse Restraining Orders: For those experiencing neglect or abuse.
- Legal Process: The petitioner files for the order, and the alleged abuser (the respondent) has the right to contest it at a hearing.
- Enforcement: Violating a civil order of protection is a crime and may result in fines, jail time, or both.
Civil orders are proactive and serve as legal tools to prevent further harm before a situation escalates. They are designed to protect individuals from harassment, abuse, or potential violence in a range of relationships.
Criminal Orders of Protection
Criminal orders of protection are issued as part of a criminal case when someone has been charged with or convicted of a crime. These orders are often put in place to protect victims or witnesses during and after criminal proceedings.
Key Features of Criminal Orders of Protection:
- Issued by the Court in a Criminal Case: A judge imposes a protective order when a defendant has been accused of or convicted of a crime, such as assault, domestic violence, or harassment.
- Common Situations:
- A defendant is charged with domestic violence or stalking.
- A victim or witness needs protection during criminal proceedings.
- No Action Required by the Victim: Unlike civil orders, criminal protective orders are typically requested by the prosecutor, not the victim.
- Duration: Criminal protective orders are often temporary while a case is pending but can be extended post-conviction.
- Strict Enforcement: Violating a criminal protective order is a criminal offense and can lead to additional charges, penalties, and jail time.
Criminal orders of protection are reactive and arise after a crime has been committed or alleged. They are intended to safeguard victims and ensure that defendants comply with court-imposed restrictions.
Key Differences Between Civil and Criminal Orders
Who Files the Order:
- Civil: Filed by the individual seeking protection.
- Criminal: Requested by the prosecutor during a criminal case.
Purpose:
- Civil: Prevent harm or harassment before escalation.
- Criminal: Protect victims after a crime has been committed or alleged.
Enforcement:
Violations of both orders are enforceable under California law, but criminal protective orders are tied to ongoing criminal charges or convictions.
Protecting Your Safety with Foster Hsu, LLP
If you need a civil restraining order, understanding your rights and the legal processes involved is essential. At Foster Hsu, LLP, our experienced attorneys help clients in San Jose and across California seek protection and legal remedies tailored to their needs.
We are here to provide guidance and advocacy for individuals and families in San Jose, Santa Clara County, and the surrounding areas. If you or a loved one needs assistance with an order of protection, contact us today for a consultation. Your safety is our priority.
Source:
selfhelp.courts.ca.gov/protective-orders