How Does a Restraining Order Work?

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If you are looking for protection from someone who is abusing or stalking you, the first question you may be asking is, what is a restraining order? This is a court order prohibiting the other person from continuing to abuse or stalk you. The types of restraining orders vary by state.

If you are being abused (physically, verbally, mentally or otherwise) or stalked by someone, applying to court for a restraining order is one way to protect yourself. Once granted by a judge, a restraining order prohibits your abuser from continuing to abuse or stalk you, and he faces harsh penalties if he does not obey it. A restraining order may last for two or five years, and you are able to ask for an extension to the order if you feel it is necessary for your protection.

What Is a Restraining Order?

The definition of a restraining order varies by state. Generally, it's an order issued by the court to protect a person by restricting the behavior of another person. Some states use the term restraining order, while others call it an order of protection or protective order, but they all have a similar overall purpose. A restraining order may be used as a remedy for various types of safety issues, including situations involving domestic violence.

Most permanent restraining orders are for two years, but you can ask for a five-year order of protection if there are aggravating circumstances or if an existing restraining order is violated. Every state has its own guidelines for aggravating circumstance – typically these include causing physical injury, using a weapon or other dangerous instrument to inflict harm, having a history of repeated violations of previous orders or a history of criminal convictions.

Types of Restraining Orders

Each state may offer different types of restraining orders. For example, in California you can seek a domestic violence restraining order, an elder or dependent adult abuse restraining order, a civil harassment restraining order or a workplace violence restraining order. Each type of restraining order comes with its own requirements. You can seek a domestic violence restraining order in California if you have been abused by someone you have a close relationship with, such as a spouse, partner, parent, child, sibling, grandparent or in-law. A workplace violence restraining order may be issued in cases where an employee has suffered stalking, serious harassment, violence or real threat of violence at the workplace, but it must be sought by the employer. In this situation, the employee can ask only for a civil harassment restraining order (or a domestic violence restraining order if a close/familial relationship with the abuser exists).

Final Restraining Order

A final restraining order may be made without going to trial if the respondent agrees to the order. She does not have to admit to any wrongdoing. However, the order gives you the same protection as an order made after a trial, and if the respondent violates the order, she can be arrested.

If the respondent does not agree to the order on your terms, the case will go to trial. In some cases, this involves several court appearances before the matter is resolved.

A final restraining order may include financial restitution (damages) if the respondent damaged any of your property, such as your car or furniture, medical expenses if you required medical attention due to physical injuries caused by the respondent, or participation in a program, such as drug or alcohol counseling or anger management.

Restraining Orders Versus Protective Orders

Some states have both restraining orders and protective orders, and there are important differences between them. Generally, these differences lie in the reasons for the order, the length of time the order is in place and the potential penalties faced by the offender if she violates the order.

In Texas, a protective order demands that a person stop abusing or stalking another person, while a restraining order is quite different. This type of order tells parties on either side of a lawsuit what they are and are not allowed to do. For example, a court may make a restraining order during divorce proceedings to ensure one or both parties behave in a particular way until the divorce is finalized, such as leaving funds in a joint bank account.

What Is a TRO?

A TRO is a temporary restraining order, which is exactly the same as a restraining order but is effective for a limited time only. This type of order can be filed to protect a person from abuse against a spouse, ex-spouse, partner, parent, grandparent or anyone else causing or threatening harm. This abuse may be physical, verbal or mental.

As well as ordering the abuser to stay away and have no contact with the protected person, a temporary restraining order may deal with issues like other protected people, such as children and pets, custody of children and access to the family home and car.

A TRO is typically filed after an ex parte order from a judge (an order made in the absence of the respondent) and is served on the abuser to give him a chance to be heard. It is effective for around 15 to 20 days, or until a court hearing with both parties present is held. During this hearing, the TRO may be extended to a permanent restraining order, or it may be modified or cancelled.

What Is a Civil No Contact Order?

A civil no contact order, also known as a 50C order, is a court order that aims to protect you from unwanted sexual conduct or stalking by someone you don't have an intimate or familial relationship with. This could be a stranger, an acquaintance, a coworker or a neighbor. If you do have an intimate or familial relationship with the other person, you would file for a restraining order, not a civil no contact order.

A civil no contact order orders your stalker or abuser to stay away from you and to stop all nonconsensual sexual conduct and stalking. It may be a temporary order, which provides immediate protection and lasts until a full court hearing takes place (typically within 10 days from the day you file your complaint) or a permanent order, which lasts up to one year.

When a temporary civil no contact order is issued, the stalker or abuser may not be given a chance to be heard on the matter if the judge believes you are in serious and immediate danger. A temporary civil no contact order may be extended if the judge finds there is good cause to do so, or if the respondent consents. The order is valid as soon as the respondent is served with a copy of the order.

A full court hearing is required before a permanent civil no contact order is issued. The respondent must be served with notice of the hearing so she has the chance to attend. During the hearing, both parties are able to provide evidence and call on witnesses.

A permanent no contact civil order lasts for a maximum of one year, but it may be extended, at the judge's discretion, provided a request for extension is made before it expires.

The terms of a civil no contact order depend on the circumstances of the case and what the court decides is necessary for your protection. It may order the respondent not to visit, assault, molest or interfere with you in any way. It may order the respondent to stop stalking or harassing you, including at a specific place, such as your workplace. It may order the respondent not to abuse, injure or contact you by telephone, in writing or via email, social media or other electronic means. It may also order the respondent to stay away from your home, school, work or other places when you are present.

In some states, such as California, a civil no contact order is known as a civil harassment restraining order.

How to File a Restraining Order

You can file for a restraining order in the district court in the county where you live, in the county where your abuser or stalker lives, or in the county where the unlawful conduct took place.

Contact the clerk's office at the district court for information about filing requirements. Generally, the first step is to file the correct court forms asking for the order. Provide as much detail as possible on your form to ensure the judge has all the relevant information. Describe each incident of abuse you have suffered at the hands of the respondent, including when it took place, where it took place, whether you suffered physical injury, whether weapons were used, what words were used during incidents of verbal abuse, and any other information relevant to your case. Make sure the information you provide is accurate, and nothing important is missing.

Use the form to ask the judge for specific things, such as ordering the respondent to stay away from your home or any other specific place, such as your place of work or your child's school, ordering the respondent to vacate the family home or revoking or suspending the respondent's license to carry firearms.

If you have children, you can ask that the respondent does not interfere with your custody of them as part of the order. Alternatively, you can file a separate petition for custody. As part of the order of protection, the court may also order visitation for either parent, specifying places, times and dates for the exchange of children. The court may also order supervised visits if this is deemed to be in the best interests of the children.

Any orders made in respect of custody or visitation last only as long as the restraining order does.

If you are seeking a temporary order, the judge will make the decision quickly, sometimes on the same day. This order lasts until the court date, which will be scheduled and appear on the order.

The respondent is then served with the restraining order by someone age 18 or older who is not involved in the case. This may be a police officer, a sheriff, a friend or relative. Alternatively, you may hire a process server. Papers for an order of protection may be served any day of the week, at any time of the day or night, and it does not have to take place at the respondent's home. In civil harassment cases based on stalking, violence or a credible threat of violence, the order may include free service by a law enforcement officer.

Restraining Order Fees

Check with the clerk's office at your court whether any filing fees are payable. Many courts automatically waive fees for victims of domestic violence or stalking, but they are payable in some states, such as New Mexico. However, you can apply for a fee waiver if you cannot afford the fee. Fee waivers are typically granted to recipients of state aid such as those who receive food stamps or cash aid. Some states put the responsibility of handling court fees on the offender. For example, in Texas, the offender is responsible for paying for any fees associated with obtaining a protective order, unless he shows good cause or is indigent. However, if the restraining order is denied, the petitioner is responsible for the costs.

Emergency protection orders, which may be requested by police officers attending the scene of a domestic violence incident, are free.



About the Author

Claire is a qualified lawyer and specialized in family law before becoming a full-time writer. She has written for many digital publications, including The Washington Post, Forbes, Vice and HealthCentral.