You can obtain a restraining order any hour of the day, seven days per week. Courts maintain an after-hours on-call judge to take care of emergency situations and someone will be available to issue the order after business hours or on weekends if necessary. If the person threatening you with physical harm is a member of your family, you will likely file for protection in family court. If the person is a stranger or nonfamily member, you will likely file in your state’s lowest trial court or justice of the peace. Since restraining orders are considered emergency in nature, you may file on your own without the need to notify the perpetrator, known as the respondent on the petition. You must submit a petition stating specific facts to convince the judge that you are likely to suffer immediate and irreparable harm from the respondent if you are not protected immediately. Your petition should also contain statements of the relief you need, such as no contact or surrender of firearm.
The Constitution requires that due process occurs in every civil and criminal case. In the case of an emergency application for a restraining order, the respondent is not afforded his right to notice and an opportunity to be heard. Therefore, restraining orders are generally only valid for a period of 10 days after issuance. Within the 10-day period, the respondent must receive notice of the restraining order and a summons detailing the date and time of the upcoming hearing. Prior to the hearing, the respondent has the option of consenting to the terms of the restraining order. If he does not, the court must hold a full hearing with both parties present. At the hearing, both parties may present evidence, or lack thereof, of alleged threats of violence and destruction. The court will then decide if the restraining order should stay in place as well as an appropriate duration.
Criminal Penalties for Violations
You should immediately contact law enforcement if the respondent violates any provision of the restraining order. Your state’s criminal code contains penalties corresponding to the violation of a restraining order. Some states classify this as a misdemeanor while others treat this conduct as a felony. The respondent could face fines and a charge of contempt of court. This charge often carries a minimum jail sentence. If the respondent damaged your property, caused you injury or otherwise broke the law while violating the restraining order, he will face separate charges for that misconduct.
Civil Penalties for Violations
You can file a civil lawsuit against the respondent for injuring you or damaging your property. The cause of action is known as personal injury if you were personally harmed and could result in you recovering the cost of your medical bills, lost wages or pain and suffering. The respondent may also be held liable for the value of any property damaged. If the respondent destroyed property to the point that it is no longer usable, he must compensate you for that loss. If the property can be repaired, the respondent will be held liable for the amount you spent to fix the damage. The court may also issue an injunction against the respondent, imposing additional civil penalties and fines for any repeat damage to you or your property.
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