A restraining order is a legal document that can help protect an individual from threats made by another person that imply harassment or violence, and that can act as a wall of defense between a potential situation and actual abuse. The threat held within the restraining order is the understanding that if certain behavioral expectations are not obeyed, the person named in the order is at risk of fines and potential imprisonment for breaking the order. This can serve as a deterrent for individuals who may have considered crossing a line between threats and violence.
Types of Restraining Orders
In the United States, the individual states determine their own specific laws regarding restraining orders, but in general, these are the basic types:
- A domestic violence restraining order focuses on individuals involved in some sort of domestic relationship – be that family, sexual, intimate or any other type of close relationship – and usually focuses specifically on the parties involved.
- A civil harassment restraining order addresses situations in which the parties involved do not have a pre-existing domestic type of relationship; this includes neighbors, extended family and strangers.
- An elder or dependent adult abuse restraining order addresses adults over 65, or adults between the ages of 18 through 64 who are dependent on others for care, who are being abused by their caretakers. These cover all kinds of abuses, from neglect to financial abuse to deprivation.
- A workplace violence restraining order is requested by an employer – not the employee in question, who might file a civil harassment suit themselves – to protect an employee from harassment and violent threats in the workplace.
Restraining Order Details
Restraining orders are designed to be responsive to specific types of behavior. Restraining orders can include three types of restraints:
- Personal Conduct Orders: These types of orders restrict specific actions performed against the individual(s) named in the order. Personal conduct orders may include the order to stop contacting, calling, messaging, threatening, following or stalking an individual and/or her loved ones. Personal conduct orders also cover more threatening actions like assault, battery, or striking and/or sexually assaulting the protected individual(s). A “no contact” order, for example, covers all the specific types of actions that can be assumed to be contact, including electronic.
- Stay-Away Orders: These types of orders keep the person named a set distance (typically 50 to 100 yards) away from anything or person named in the order. This can include the protected individual, his family, his home and place of employment and any other places of importance like a child’s school or a spouse’s place of employment.
- Residence Exclusion Orders: These “kick-out” orders instruct the person named to remove herself from a shared home with the protected individual, taking only personal items like clothing with her, until the court case proceeds. These types of orders are available only in certain circumstances.
Often, a restraining order may combine types; for example, an order might require someone to stay 100 yards away from a protected person, in addition to ceasing contact and communication. The items included in the order will be determined based on the situation.
Restraining Order Requirements
Obtaining a restraining order is a legal process much like any other. It starts with paperwork and a case filing, which then appear before a judge. In the case, the prosecution will discuss any proof the individual has that a person has been engaging in threatening behavior and that he needs the protection that a restraining order will provide (in other words, does he have grounds for a restraining order).
This often requires as much proof as is available regarding the threatening person’s behaviors, in as much specificity as available: a phone record showing repeated calls or text messages or information describing a number of times an individual has been followed. It also requires some sort of proof or belief that the individual is in fact in danger; disclosure of previous threatening behavior can work as evidence. Any specific requirements for a restraining order will be detailed by state laws; for example, in some states, the threatening actions must have repeated themselves at least twice in order to be considered for a restraining order.
A Safe Space for Cases
Often the individual has the chance to present her case to a judge without the threatening person present, which means she has a safe space to describe her situation. The judge may decide to serve a temporary restraining order, which will limit the threatening individual’s actions until the hearing can occur, if she is deemed to be in immediate danger. Until this order has been served, the threatening person is free to continue acting as he likes. Once the order is served, he is required by law to obey that restraining order, or risk future arrest.
Both Parties May Be Present
In other cases, the judge will determine that there is no immediate present danger, and will schedule a hearing in which both parties can be present to discuss their case and present their sides of the story. In these cases, the hearing is normally within seven to 14 days of the request, since most issues that require a restraining order hearing also require a timely response.
Restraining Order Hearings
At the hearing, both parties are allowed to present their side to the judge. Both sides are allowed to have legal representation as well, although it is not required. In these cases, the burden of proof is less than that of an actual trial; the individual must convince the judge of his need of protection by evidence, rather than by proving the other person is guilty beyond reasonable doubt.
The judge will then decide whether to support the temporary restraining order or to apply a new one; in this case, both individuals agree to the order, which is usually assigned for a period of one to two years. Alternatively, the judge can deem that there is insufficient evidence to require a restraining order, and may dismiss the case.
It’s important to pay attention to the time period of the restraining order. If it is not permanent, the parties must meet before the judge again when the order expires, to determine whether it must be renewed, or if it can be dissolved.
Important Restraining Order Considerations
Keep in mind that the restraining order itself is a civil document, and does not necessarily address the circumstances that caused the need for the order. The individual who has been threatened may still desire to take the named person to court for criminal charges of harassment, abuse, violence and/or sexual assault; doing so is a different process.
Instead, the restraining order is a first step to ensure an individual’s protection and safety. From there, he may choose to further instigate a criminal case against the named person. The restraining order can impose limitations on the named person’s actions and location, but the criminal trial would be the place to determine whether any fines, jail time or other penalties should be assigned as well.
Starting the restraining order process may seem intimidating, but it’s a process that’s in place to protect individuals who feel they are in danger from another person’s threats or harassment. The process itself proceeds much like a court case, but with some simplification, to streamline the process and get to a solution both parties can agree to. While requirements vary from state to state, in the end, only the presence of a credible threat is needed to get the ball rolling.
Read More: How to Fight a Restraining Order
Danielle Smyth is a writer and content marketer from upstate New York. She holds a Master of Science in Publishing from Pace University. Her experience includes years of work in the insurance, workers compensation, disability, and background investigation fields. She has written on legal topics for a number of other clients. She owns her own content marketing agency, Wordsmyth Creative Content Marketing, and enjoys writing legal articles and blogs for clients in related industries.