Before a permanent restraining order can be issued, the court handling the case holds a hearing. At this hearing, the petitioner explains why she needs a permanent restraining order against the respondent. The respondent may be present and refute the petitioner’s reasons for the restraining order or the specific restraining order requirements.
In the most general sense, a restraining order prohibits contact between two individuals. Many different types of restraining orders exist, and the type of restraining order an individual can obtain depends on a few factors. These factors include the state where she lives, her relationship to the respondent and the circumstances under which she is seeking the restraining order. Requirements that a restraining order may enforce include:
- Barring all face-to-face, telephone and electronic contact between the parties.
- Barring the respondent from visiting the petitioner’s home or place of business.
- Requiring the respondent to surrender all of her firearms and prohibiting her from purchasing more firearms.
- Requiring the respondent to move out of the home he shares with the petitioner.
- Granting the petitioner full custody of the children he has with the respondent.
- Requiring the respondent to pay child support or spousal support, either temporarily or for a long-term period.
In many states, such as Michigan, it is possible for an individual to obtain a temporary restraining order without a hearing. This kind of restraining order is put into place to protect the petitioner from immediate harm at the hands of his abuser, but it only serves as short-term protection until a permanent restraining order is put into effect. Unlike temporary restraining orders, permanent restraining orders require hearings to ensure they are being sought and issued in good faith and that all parties involved are treated appropriately under the law.
All Parties Are Sworn Into Court
At the beginning of the permanent protection order hearing, all parties are sworn in. This means they state, under oath, that every statement they make thereafter is factually correct. Lying in court is an act of contempt of court, an act for which an individual can face criminal penalties.
Both the petitioner and the respondent have the right to representation by qualified lawyers. Just as the petitioner and respondent must be sworn into the hearing, the lawyers and any witnesses that either party brings to court are as well.
The Petitioner Presents Her Case
After being sworn into the permanent restraining order hearing, the petitioner presents her reasons for seeking the restraining order. At this point, she shows the court all the evidence she has that demonstrates the abuse she has suffered from the respondent, such as:
- Photographs of injuries she sustained through physical abuse.
- Copies of her medical bills for injuries sustained through physical abuse.
- Transcripts of phone calls and voicemails that contain threats of harm from the respondent.
- Testimony of threats she has received verbally from the respondent.
- Transcripts of 911 calls she has made related to the respondent’s abuse.
- Testimonies from witnesses of her abusive relationship with the respondent.
- Photographs of the aftermath of abusive episodes, such as the petitioner’s home in disarray or broken objects.
After the petitioner presents her case, the respondent – or the respondent’s lawyer, if he has one – may cross-examine her. This means he asks questions about the information presented to fill in any “holes” in her testimony and to potentially find such holes and expose them to the court. Similarly, the defense may ask the petitioner’s witnesses leading questions, questions that can be answered with “yes” or “no,” to better flesh out the narrative presented by the petitioner. The petitioner and the witnesses may refuse to answer any questions that violate the rules of evidence or are irrelevant to the case.
Answers that violate the rules of evidence are answers that cannot be admitted in court because they are irrelevant, could confuse or mislead the jury, or could potentially prejudice the jury. For example, if a respondent asks a petitioner, “How many kittens did we adopt during our marriage?” the petitioner is under no obligation to answer because the question is completely irrelevant to the restraining order case. Similarly, answers based on hearsay – statements made outside of court that cannot be substantiated – are not admissible.
The Respondent May Counter a Restraining Order
When a restraining order petition is filed, the respondent is served with documentation notifying him of the upcoming hearing. Generally, if he ignores the notification and does not show up at the hearing, he waives his right to counter the restraining order, and the court issues the order to the petitioner. However, if the respondent does attend the permanent restraining order hearing, he has the opportunity to discuss his side of the story with the court and demonstrate that either:
- The restraining order is unnecessary and being sought on fraudulent claims.
- The specific restraining order terms the petitioner is seeking are inappropriate for the situation.
For example, the petitioner might seek full custody of the children she has with the respondent in her restraining order. The respondent may argue that he has never posed a risk of harm to the children and that terminating his relationship with them will only cause them to suffer.
Just as the defense had the opportunity to question the petitioner and all witnesses supporting her story, the petitioner (or her lawyer) has the opportunity to cross-examine the respondent and any witnesses he brought to the hearing. The judge also may cross-examine the defendant and his witnesses at this point, asking questions similar to those posed by the plaintiff.
The Court Determines Appropriate Permanent Restraining Order Terms
After both parties have presented their sides of the story, evidence and supporting witness testimony, the court determines the actual terms of the permanent restraining order. Just as the respondent had the opportunity to refute the petitioner’s reasons for pursuing the restraining order, she has the opportunity to counter the restraining order terms at this point in the hearing. Restraining orders have general provisions, such as prohibiting electronic and physical contact between the parties. If he feels it is necessary, the petitioner may also request specific provisions, such as:
- Requiring the respondent to cover damages related to the abuse, such as medical bills.
- Barring the respondent from speaking to him even when picking up or dropping off their children for custodial time.
The court also determines an appropriate duration for the restraining order. Despite its name, a permanent restraining order is not always permanent. In fact, most permanent restraining orders are valid for only a few years. In California, a restraining order’s duration depends on its type – domestic restraining orders are valid for up to five years, while civil harassment restraining orders are only valid for up to three years. Conversely, some states, like New Jersey, do issue truly permanent restraining orders.
The judge may reach his decision immediately, or he could take some time to determine an appropriate restraining order for the petitioner. He could state his decision after taking a few hours’ recess the same day as the hearing or a few days or even weeks afterward. Once the judge reaches a decision, he signs the restraining order and enters it into the court record. It is then legally enforceable until it is either cancelled or it expires.