If someone has asked the court for a restraining order against you, you must stay away from that person and comply with any other terms of the order. Fighting a restraining order involves attending the hearing to present your own evidence. The judge will consider all evidence before making an order.
A restraining order against you is a serious matter. It orders you to stay away from the person who filed for the order (the petitioner) and may also impose other conditions, such as not contacting the petitioner in any way, relinquishing the use of a shared home or car, or paying support to the petitioner. If you want to fight a restraining order petition, you have to build a strong case to disprove the petitioner’s allegations.
Types of Restraining Orders
A restraining order is a general term used to describe an order giving a person protection, by stopping another party from doing certain things. Most states called this a "protective order." Protective orders may be issued to prevent domestic violence between family or household members, abuse of a dependent elderly person, or to prevent harassment or stalking by a person who is not a family or household member.
For example, in Texas, a Family Violence Protective Order protects a person from any act committed by a family or household member (such as a spouse or former spouse) that is intended to cause physical harm, assault or sexual assault, or a threat of immediate physical harm, assault or sexual assault.
Temporary Restraining Orders
In some cases, a temporary restraining order may be issued without you even being aware of it. This is known as an ex parte order, and all states have legal provisions regarding this. An ex parte order is made only if the judge believes the petitioner needs emergency protection from the alleged abuser, for instance, if there is a genuine threat of immediate harm.
The exact procedure for a temporary restraining order varies by state. In some states, the judge reviews the application and supporting documents and either grants or denies the ex parte order on the strength of the application without meeting the petitioner. In other states, the judge holds a short initial court proceeding with the petitioner present, in order to decide whether the situation is a genuine emergency.
As the respondent, there is very little you can do about a temporary restraining order, because the judge who made the order was satisfied that it was necessary. However, the order lasts only for a short time, until a full hearing is held. Some states require a full hearing to take place within 10 days, while others require a full hearing in 14 to 20 days. In California, you may have to wait up to 21 days for a full hearing.
Fighting a Restraining Order in Court
When the court schedules a full court hearing, you (the respondent) must be served with the court papers, which include the date and place of the hearing and a copy of the petition. Typically, you are served by a sheriff or other law enforcement officer.
You have the right to file a response to the petition at any time before the court hearing, although you do not have to do this. File your response by completing all the forms you were served with and returning them to the court office and serving a copy of the forms on the petitioner. You cannot do this yourself – you must get someone 18 or older to give them to the petitioner.
At the full hearing, the petitioner presents evidence to support the request for a restraining order. Depending on the circumstances of the case, this may include photos, hospital records, phone records and police reports. Depending on the type of restraining order the petitioner is seeking, this evidence must support allegations of assault, threats or intimidation.
To have a good chance of fighting a restraining order, you have to weaken the petitioner's case by presenting your own evidence, such as evidence (beyond your own word) that you were somewhere else at the time of an alleged assault. If you have witnesses who can back up your case, ask them to appear in court or prepare written statements.
After hearing from both parties, the judge will decide whether to make a permanent restraining order, a decision based on the strength of the evidence from both parties. If the judge doesn't believe a permanent order is required, she may dismiss the petition and cancel the temporary order.
It's important to attend the court hearing. If you don't, it's more likely that a permanent order will be made. In some states, failing to appear is sufficient grounds for the judge to automatically grant a permanent restraining order.
If you attend the court hearing but don't contest the order, the ex parte order will be replaced with a permanent order without hearing evidence from either party.
Effect of a Restraining Order
A restraining order typically lasts for one or two years, although it may last longer, depending on the type of order and the circumstances of the case.
A restraining order may be renewed upon the application of the protected person before the original order expires, for a specific length or time or permanently, whether or not there has been any more violence or threats of violence. The court will hold a hearing to decide whether to renew the order or not, and you have the right to attend the hearing to present your case. This means you will be served with copies of the forms and given the right to respond. If you do not attend the hearing, the court may renew the order against you in your absence.
If a restraining order is made against you, you must comply with the terms of the order. If it is a domestic violence protective order, you will lose your right to possess a firearm. If you have children with the petitioner, you may lose your right to custody and visitation while the order is in force. You may be ordered to pay child and spousal support for the duration of the order. You may be ordered to pay any expenses related to the restraining order, such as legal fees, medical bills and childcare costs.
If you violate a restraining order, you face incarceration and/or a fine. Almost all states consider basic violation of a protective order a misdemeanor crime, meaning it is punishable by up to a year in prison and/or a fine of up to $5,000.
Appealing a Restraining Order
If you want to make an appeal to a false restraining order or false order of protection, you must follow the procedure required in your state. It may be a good idea to seek legal advice at this stage (if you haven't already) to give yourself the best chance of a successful appeal. However, you can represent yourself.
You need to comply with all statutory time limits. For example, in California, you have a maximum of 60 days to file a Notice of Appeal to let the court know you are appealing the restraining order made against you.
The grounds for appeal vary by state. In some states, such as Nevada, an appeal cannot be made on the basis of new circumstances or information. Appeals must be based only on judicial errors or evidentiary or other procedural mistakes made by the judge. For example, you may appeal the order on the basis that you were not served with notice of the hearing.
- Texas Constitution and Statutes: Family Code Chapter 82
- Texas Constitution and Statutes: Family Code Chapter 81
- California Courts: Filing the Notice of Appeal
- Legal Aid Center of Southern Nevada: Q&A – Protection Order Motions And Appeals
- California Legislative Information:Penal Code 273.6
- Texas Constitution and Statutes: Family Code Chapter 71
- California Courts: Restraining Orders
- California Courts: Respond to a Restraining Order
- The Superior Court of California County of Orange: Domestic Violence Restraining Orders