Restraining orders are issued by the court to protect victims from further abuse, harassment or stalking. Usually there are two hearings in restraining order cases. A judge typically gives an immediate hearing to the plaintiff, reviewing the paperwork, setting a date for the full hearing and determining whether a temporary restraining order is needed. At a later hearing, both the plaintiff and the respondent have the opportunity to present their case.
A restraining order hearing works like a trial, without a jury. The plaintiff and defendant both appear before a judge and provide testimony under oath. The judge rules based on the evidence presented.
Ex Parte Hearing
The first hearing to take place in restraining order cases is often an ex parte hearing, where the judge hears the plaintiff's side of the story and decides whether or not to issue a temporary restraining order to protect her until the full hearing. "Ex parte" is Latin for "on one side only," and these hearings are so called because at this time, only the plaintiff has the opportunity to present her side of the story.
Preparing for the Full Hearing
The full hearing is when the judge will determine whether to issue a permanent restraining order against the respondent. Although this is the first time the respondent will be given the opportunity to present evidence that a restraining order is unwarranted, the plaintiff will also be able to present her side of the case more fully. Practicing telling your story to a friend can be one of the most effective ways to prepare for the full hearing, as it will be important that you present your case carefully and clearly to the judge.
The success of the plaintiff's case largely depends on the evidence she brings before the court. The court needs to understand why the plaintiff has reason to fear her former partner. Photographs of injuries or damaged property, police records, medical records, text messages, voice mail messages, emails and other written communication are all evidence of the hostilities. Witness testimony is particularly compelling, especially if witnesses can testify that the defendant's threats and acts are remaining constant or increasing.
Who Will Be There
A judge, who will rule on your restraining order, will preside over the courtroom. A court reporter will also be present, keeping the official record for the courtroom. A deputy sheriff provides security in the courtroom, and the court clerk is in charge of documents and physical evidence and swearing in witnesses. Both the plaintiff and the respondent will most likely – but not necessarily – be present in the courtroom. If the plaintiff is not present, the restraining order will probably be denied, but if the respondent does not appear, the restraining order will probably be automatically granted. Both the plaintiff and the respondent may also have attorneys present.
At the Hearing
At the hearing, the plaintiff, respondent and witnesses will be sworn in. The allegations of violence or harassment will be read, and then the judge will give each party the opportunity to present her side of the story. The plaintiff will describe what happened and present any evidence or witness testimony. The respondent will be given the chance to argue against the restraining order. After hearing evidence, the plaintiff also will be given the opportunity to express any conditions she desires be included in the restraining order. The judge has the discretion to impose all sorts of terms, such as ordering the abuser to have no contact with the plaintiff, ordering him to pay for damages associated with the abuse such as medical bills, and things like child custody financial support and visitation. The judge will then rule on the restraining order and its provisions.
After the Hearing
If granted, restraining orders are typically valid for anywhere from one to five years, depending on state law. In some states, after a year, judges will review restraining orders and determine whether they are still necessary. Unless they are officially rescinded by the court, no provision of a restraining order should be violated.