Last Updated on July 2, 2025
When someone you know, even love, accuses you of assault, harassment, stalking, or domestic violence, you may feel hurt and betrayed. You may not know what to do. But what you can’t afford to do is wait to hire a lawyer experienced at defending against restraining orders (sometimes called “protective orders” or “stay-away orders”). Attorney Peter M. Liss has over 40 years of experience helping clients facing temporary restraining orders (TRO) and permanent restraining orders (PRO) in Vista and the rest of San Diego County. He knows how to fight a restraining order and protect your rights and freedoms.
What Kind of Restraining Orders are Used in Vista, California?
There are six reasons restraining orders may be issued in California, and a qualified defense attorney in San Diego can help represent you against any of these:
- Domestic Violence: The most common reason stay-away orders are issued is to protect intimate partners who have been subjected to sexual, physical, or emotional attacks from a current or ex-partner.
- Civil Harassment: The second-most frequently issued type of protective order, civil harassment orders help protect those targeted by someone they do not have a domestic or dependent relationship with. They are typically invoked by harassed or already attacked neighbors and former friends of the defendant. They can also be obtained by persons located anywhere if the abuse happens online.
- Elder Abuse: These restraining orders are issued exclusively to seniors over 65 or adult dependants who a caretaker is physically, emotionally, sexually, or financially abusing.
- Gun Violence: These court orders are different than other restraining orders because they only restrict the ability of the individual to possess a gun, but do not put any restrictions on where they can go or who they can interact with. These can be brought to court on behalf of family, roommates, co-workers, employers, and teachers who are concerned the individual could commit murder or suicide if they have access to their weapons.
- Workplace Violence: These protective orders help an employer safeguard one or more employees who may have been threatened at their place of business.
- School Violence: Similar to workplace violence orders, these are issued to private college representatives to help protect students who may be at risk while on campus.
- Retail Crimes: The newest type of protective order, these are issued to protect retailers against offenders convicted of theft, vandalism, or battery against an employee.
How to Fight a Restraining Order
Unfortunately, because of the way emergency and temporary restraining orders are issued in California, there is not much you can do to fight these, even if you hire an experienced lawyer. Defending against a restraining order isn’t really possible until the matter goes to a hearing, which doesn’t happen until the permanent stay-away order hearing. Here’s how the process works and what a defendant can do at every stage:
Emergency Protective Orders
If someone is arrested during a dispute with an intimate partner, a child, or a dependent adult, the victim will usually be issued an emergency protective order that lasts seven days. These orders are only issued for cases involving domestic disputes, child abuse, or elder/dependent adults. When these restraining orders are issued, you cannot do anything except avoid the other party during the temporary period while they are in effect and contact a Vista or San Diego defense lawyer.
Temporary Restraining Orders
When a victim wants to extend their emergency restraining order or obtain a new one without first going through the police, they will go to a judge ex parte, meaning without notification to the other party. The petition for temporary restraining orders (TRO) requires them to list what actions the other party has taken against them. Violence and harassment can both be used as reasons for a restraining order, and harassment can come in several forms, from threats and stalking to annoying phone calls.
Because San Diego County temporary restraining order hearings are done without notification of the other party, the individuals accused of wrongdoing cannot defend themselves, even if they have already contacted an attorney. If the judge grants a temporary restraining order, they will then set up a hearing to determine whether it should become permanent.
While you will not be notified during the initial hearing if someone files for a temporary restraining order against you, if it is issued, you will be served with a notice of the temporary restraining order. This document will also let you know the date of the upcoming permanent restraining order hearing.
When you receive paperwork notifying you there is a TRO against you in Vista or the rest of San Diego County, contact a lawyer as soon as possible to begin fighting the permanent stay-away order. Even if you think there must be a misunderstanding, never approach the person who sought out the order, or you may be arrested for violating your restraining order. Do not destroy any evidence that could be related to the case.
Permanent Restraining Order
At the hearing for a permanent restraining order, either party may call witnesses. While you have the right to hire a lawyer, they are not considered mandatory, so you have no right to a court-appointed attorney. When you need to defend yourself against a stay-away order, a criminal defense attorney can help protect your rights throughout the hearing process. If you win your case, the judge might even order the other party to pay the legal fees for fighting the allegations.
In these hearings, basic rules of evidence apply, which means that any evidence that does not comply with the law (due to illegal search and seizure or irrelevance) cannot be admitted. You should bring any admissible and relevant evidence, including documents, texts, phone recordings, witnesses, or physical evidence, to present on your behalf.
There also may be an opportunity for an experienced lawyer to negotiate a resolution that doesn’t require filing a restraining order against you long-term.
Criminal Protective Orders (CPO)
If an individual is arrested and charged with a crime, a district attorney may submit a petition for a criminal protective order to protect victims and witnesses in the case. Because they are introduced in court, your attorney can fight them. Even when they are put in place, you can always ask the judge to modify the order as time goes on, even asking to modify a “no contact protective order” to a “peaceful contact protective order.” A peaceful contact order is unique from similar orders because it still allows contact between the two parties if certain conditions are met, such as no contact at a private residence or no weapons being carried. These restrictions can be critical when these orders are issued for a person going through a divorce where parents share parental custody.
Criminal Protective Orders may have expiration dates on them, but they may be canceled early if the case is resolved before the date on the order. However, some CPOs can last as long as 10 years.
One unique defense against retail crime protection orders is that there are not sufficient shopping options for a necessary service available in the area. For example, if someone lives in a “food desert,” it would be considered unfair to prohibit them from going to the only grocery store in the area. On the other hand, if there is only one jeweler within a 200-mile radius, this is unlikely to sway the court because jewelry is not a necessary commodity for survival.
Rules You Must Follow With a Restraining Order Against You
The specific details of each restraining order will vary based on the situation and the category and type of protective order. However, with the exception of gun violence and peaceful contact criminal protective orders, they almost always prohibit contact with the victim. This restriction on contact doesn’t just limit how close the defendant can get to the victim, but also outlaws contact via phone, email, social media, text, or even messages sent indirectly through others. It will also prohibit using surveillance to view the other party.
Anyone with a restraining order against them will no longer be able to possess firearms.
Many people who are subject to restraining orders must also undergo anger management classes, a batterer’s intervention program, or parenting classes.
Additional Consequences of Restraining Orders
While not a rule you must follow, it’s worth noting that these court orders appear on your criminal record, meaning they will show up on background checks, which could harm your ability to get a job, get a loan, or rent a new home. If you are a parent, this could also cause you to lose child custody, particularly if the child’s other parent is the one being protected.
Penalties for Restraining Order Violations
Violating the terms of a restraining order is a crime under California Penal Code section 273.6 (PC). Penalties vary based on the exact situation, but here are some of the most common sentences seen in San Diego County:
- Most first-time offenders face up to one year in jail, a $1,000 fine, counseling, payments to a battered women’s shelter, and restitution to the victim.
- Possession of a firearm while subject to a restraining order is punishable by up to one year in jail.
- If the victim was injured in the incident, you will face a minimum of 30 days in jail.
- When you are found guilty of violating a restraining order more than once within seven years, you could face felony charges, punishable by up to three years in prison.
Fighting Restraining Order Violation Charges
There are defenses to this crime. To be convicted under 273.6 (PC), the prosecution must prove:
- the restraining order was legal
- you knew about it
- the violation was intentional
One common defense is that you simply didn’t know about the protective order. In cases where you were not in court when the order was issued (after you were placed under a TRO, for example), a lack of knowledge can be a strong defense.
Similarly, if you did not intentionally violate the order, you cannot be convicted for violating it. For example, if you went to a restaurant and were unaware that the person who has a restraining order against you was already seated in the back of the restaurant, you did not willingly violate the law.
It is not a defense to say the protected party consented to the contact, as this requires confessing that you had contact with them. A common situation in these cases arises when the person being protected by the order calls the person ordered to stay away from them and attempts to rebuild the relationship. When this happens, it can serve as a reason for your lawyer to ask the judge to dismiss the order. If the alleged victim in your restraining order case contacts you, tell your San Diego defense attorney immediately.
Unfortunately, it can be very easy to destroy your chances of using such a defense if you speak to the police, victim, or prosecutor without your lawyer. For example, you can’t say that you didn’t know about a protective order if you say, “I didn’t know you would be there, or I never would have risked violating the restraining order.”
Restraining Order FAQs
Can I Go Home with a Restraining Order in Place?
When a stay-away order is issued, you must leave your home (assuming you and the alleged victim live together) for the period set forth by the court. However, you can enter your home while supervised by law enforcement officials to retrieve your stuff, a one-time occurrence. If there are any disputes about who owns specific belongings, you will not be allowed to take them.
Can I See My Kids with a Restraining Order Against Me?
When it comes to child custody and protective orders, this should be addressed in court. In some cases, the court may allow for exceptions for you to have temporary contact with the protected party to allow for child visitation rights, but your attorney must address this at the hearing. If the restraining order does not explicitly permit you to see your children, you cannot violate it to do so.
Some of these cases turn into divorces or child custody battles, and custody issues must be settled in Family Court. A domestic violence conviction will prevent someone from gaining custody of their children.
What Standard of Proof is Used for Restraining Order Cases?
In most criminal cases, the prosecution must prove the defendant is guilty beyond a reasonable doubt. Unfortunately, for those falsely accused of hostile acts, the standard for stay-away orders is much lower, though you can still present evidence to prove your side of the situation. For civil harassment, the accuser must show “clear and convincing evidence” that you presented a threat to their safety. In domestic disputes, the alleged victim must only provide a “preponderance of evidence,” an even lower standard of proof that essentially means the defendant should more likely than not be restrained from the victim.
The victim also need not prove physical or sexual assault but can also secure a restraining order based on stalking, harassment, emotional abuse, or property damage.
How Can I Avoid Violating a Restraining Order?
Avoiding someone entirely can be tricky, even in a massive county like San Diego, especially if you live together in the same city. Fortunately, the court allows you to defend yourself if someone accuses you of violating this crime. Intent is an essential element of this offense, so if you accidentally showed up somewhere without knowing your ex was there, you are not guilty.
If your ex starts to contact you, you can still be charged with violating a stay-away order if you reply or return to your home. If your ex communicates with you, call your defense attorney to discuss bringing this information to the judge, as it might be enough to get the order lifted.
Can You Appeal a Restraining Order?
Yes. Under California law, you can file an appeal on a restraining order. While you can technically file an appeal for a TRO, the process takes so long that your permanent restraining order hearing would come up before the court addressed the appeal for the temporary one. As for appealing a permanent stay-away order, this is best handled with the help of an attorney.
You cannot appeal based solely on dissatisfaction with the court’s ruling. Instead, your attorney must show that a law was improperly applied, evidence was overlooked, your rights were violated, or offer another valid legal reason that your case should be reviewed. Three judges will evaluate appeals, reviewing the transcripts and evidence used in the case. You cannot introduce new evidence at appeal. If they rule in your favor, they will dismiss the restraining order.
A San Diego Lawyer Can Help You Fight Your Restraining Order
If you are subject to a TRO in San Diego, need help defending yourself against a protective order, or have been accused of a restraining order violation, please call (760) 643-4050 to schedule a free consultation with top Vista attorney Peter M. Liss.
