How Does a Restraining Order Work?

••• izusek/E+/GettyImages

Related Articles

We read, hear or are involved in these incidents frequently – an angry former spouse invades his ex’s home and accosts her. Or a stalker is obviously tailing you near your workplace and even shows up outside your apartment. You visit your elderly mother and find her with bruises on her arms. You’re afraid for your safety and that of your family.

Getting a restraining order involves convincing an officer of the court that someone is threatening your safety, has abused you or a family member, or is intimidating you to the point that you are afraid of what may happen. Also known as orders of protection in many states, they serve a multitude of functions, but what they can’t do is guarantee that the offending partner will stay away and that the issuing party is safe.

Causes for Restraining Orders

While most reasons for issuing a restraining order are domestic violence, domestic abuse isn’t the only reason for a restraining order. A workplace incident involving a disgruntled employee, a landlord-tenant dispute and even neighbors who refuse to behave in a neighborly fashion all serve as reasons to get a restraining order.

Elder abuse is another emerging cause for obtaining a restraining order. Older adults living alone often suffer abuse from children or caregivers. When this is discovered and documented, a restraining order is warranted.

Getting a Restraining Order

Restraining orders are governed by state law and issued by a locality’s civil court. And while a court ruling on a restraining order generally takes up to 10 days, a temporary restraining order can be written immediately. Your job is to convince the jurisdiction that the person you’re restricting from your immediate circle is a threat. At this point, the restraining order is as a civil matter, and it only becomes a criminal incident if the restraining order is broken or if the offender is arrested.

Types of Restraining Orders

An emergency restraining order is issued if you are in immediate danger. Its effectiveness is short-lived, however, as the offender doesn’t have an opportunity to defend himself. It’s the precursor to a permanent restraining order and expires within a few days. Temporary restraining orders are issued to give you protection until you go to court and are effective for about 14 days.

A longer restraining order, such as one involving domestic violence, lasts for months or years, and in a no-contact restraining order, the victim is protected against any contact from the perpetrator. In both cases, the offender must be served papers and given the opportunity to appear in court. If he’s not found, has moved or disappeared, the victim must continue to petition the court until the offender is served.

Depending on the state, a distinction exists between a protective order (PO) and a restraining order. A PO is issued against someone who is threatening to another. It’s not as strong as a restraining order in that it doesn’t provide a full description of what the perpetrator can and cannot do. Restraining orders aren’t all related to violence or abuse. In the case of a divorce, it outlines the parameters of visitation and how joint funds are handled, and it can even include who takes care of the family pet.

Proving Your Case

Self-help centers for victims of domestic abuse provide guidance for anyone who wants to get a restraining order. They’re also available if you’re being stalked, harassed or if anyone has threatened you. Even if the offending person lives in the same house, a restraining order can be issued against him. But you’ll need to provide evidence. Legal aid also can help with the paperwork involved in getting a restraining order.

If the police have been called to your home because of a domestic violence situation, a written report exists, which is ample evidence for a restraining order to be issued. Photographs of injuries also serve as evidence. Neighbors who witness arguments and coworkers who have seen the perpetrator in action ‒ all can validate your claim for a restraining order. Filing a report with the police greatly strengthens your case against the offender and lays the groundwork for moving forward.

In the state of California, if there is evidence of prior violence or a threat of violence or if you are being stalked, you won’t have to pay a fee for the order. Under these circumstances, federal law states that everyone has a right to obtain a restraining order at no charge. Ask for a “fee waiver” form that may also include a “no charge” service, which means a third-party person will deliver the restraining order to the offending party without your having to pay a service fee.

Restraining Order Protections

There are as many types of restraining orders, or orders of protection, as there are types of incidents. Each restraining order carries with it specifics that define the behavior of the person being protected as well as that of the restrained person.

Personal conduct restraining orders mean everything from staying away from the protected person to prohibiting verbal and physical abuse, property damage and/or neighborhood disturbance. A violation of any of these conditions can turn the civil restraining order into a criminal complaint, which it will go onto the police record of the offender.

Stay-away orders means just that. Stay away from the protected person, her children, family members, her place of work, her vehicle and the places she frequents.

The residence exclusion, also known as a “kick out” or “move out” order, is issued in an elder abuse situation or in the case of domestic violence. The offender must remove his personal property from the residence and can no longer call it his home.

The residential exclusion also comes with prohibitions against owning a gun. If the offender owns a weapon, it’ll have to be turned in to the authorities or sold. The exclusion also affects a person’s immigration status. A violation of this order results in an arrest, jail time and/or a fine.

Read More: Ways to Drop a Restraining Order

Obtaining a Criminal Protective Order

States, and even jurisdictions within each state, establish their own procedures regarding criminal protective orders. However, if a person has been arrested on a criminal charge, a criminal protective order is obtainable. The restrictions are like those of a civil restraining order, but the order is issued post-arrest of the offender.

The criminal protective order takes longer to process and must be handled through the criminal court system. Family counselors are brought in to assess the offender and determine whether counseling will be beneficial. If so, the mental health track is ordered. If the offender is considered malignant and won’t benefit from counseling, the case is ordered for prosecution for his offense as well as his status under the protective order.

Victims are also coupled with a victim advocate and are informed about what to expect during the process. They offer input as to the direction and possible resolution of the case. The advocate then relates the victim’s side of the story to the judge and how she wants to proceed. But it is up to the judge to render a decision.

Don’t Become Complacent

If the protective or restraining order you’ve asked to be issued is working and you feel as if you will be safe from danger when the order expires, rethink your options. You may not have seen the offender for the duration of the complaint, but just one visual connection may trigger old feelings of rage, igniting the hostility that led to your issuing of the complaint. Document any subsequent harassment and apply for a renewed restraining or protective order.

References

About the Author

A writer for many years, Jann has contributed to television programming revolving around legal issues, written for magazines and web sites regarding the law, and her manuals on real estate law specifics are used in real estate schools in Florida.