A restraining order, also known as a protective order, is a court order directing an individual to stop certain behaviors such as domestic violence, contacting, harassing, stalking or abusing a person or their children. A person who violates the terms of a restraining order can face sanctions or arrest for a criminal offense, including fines and jail time. Victims should report a violation to law enforcement as soon it occurs. Depending on the circumstances, it may not only save their life but result in a criminal conviction for the abuser.
What a Restraining Order Covers
While there are differences from state to state, courts establish specific provisions in restraining orders (sometimes called an order of protection) to protect domestic violence and other victims of abuse. For example, an order will usually require an abuser to cease their actions against the victim and their children. The majority of states also require the abuser to stay a certain distance away from the victim and the places they frequent, including their residence, workplace and school. The court may also create a no-contact clause in the order that states the abuser cannot contact the victim in any way, including through a third party.
The courts will require the abuser to adhere to all the requirements listed in the restraining order. These can include:
- Financial Support: The order may require the abuser to make child support or mortgage payments.
- Exclusive use: The court may require the abuser to award the victim the use of a car or a residence if they share ownership.
- Restitution: The abuser may be ordered to pay for the victim's medical costs or property damage if they caused either.
- Firearm relinquishment: Some states require an abuser to turn in their firearms.
- Treatment: The abuser must seek treatment, for example, anger management or substance abuse counseling.
- Custody or visitation rights: Courts can order an abuser to have no contact with their children's daycare, doctor, job or school. It may also order supervised visits or specify arrangements between parents.
Temporary and Final Restraining Orders
After a domestic violence incident or other circumstance of abuse, a victim may petition for a temporary restraining order, or TRO. In most cases, these short-term orders are valid for only a few days until the court hearing. To get a TRO, the victim must convince the court that they will not be safe in the time period between the incident and the hearing.
If the judge believes that the victim needs the security of a TRO, they can issue it immediately. There is no requirement to give an abuser notice, and there will be no hearing to issue a TRO. There is also no way to appeal the court's decision to issue a temporary restraining order. After the hearing the court creates a final, or permanent, restraining order, which can last a number of years or even a lifetime.
What Happens When a Violation of a Restraining Order Takes Place?
When an abuser violates a restraining order, the victim can ask law enforcement and the court to enforce it. Which entity they ask and the consequences for the abuser depends on the state and the violation itself. Police officers can typically enforce order requirements such as ceasing abuse, no contact and custody orders, as these will need immediate attention for the safety of the victim and their children. However, law enforcement cannot enforce all restraining order violations, such as the requirements to attend treatment programs or to pay support; only the court has the ability to do this.
Some states require a prosecutor to file a petition for the hearing, which then takes place to study the evidence. If a judge finds that a violation of the restraining order occurred, they will determine a penalty for the abuser. The court may find the abuser in contempt, resulting in jail time, a fine or both. Violations may also result in modification or extension of the original protection order.
Defining Civil Contempt of Court
An abuser who violates a protection order can face civil contempt or criminal charges – each has different standards and outcomes. Depending on the states that allow it, a civil court will address some restraining order violations. The court may issue sanctions for violations, or the abuser may receive a court order requiring them to adhere to the original restraining order. Civil contempt penalties will not include jail time.
The court may make the order more restrictive or threaten the restrained person with moving the case to criminal court if they continue to flout the requirements of the original order. Civil contempt is typically easier to prove than criminal contempt due to the preponderance of the evidence standard. This means there is at least a 50 percent chance that the victim's claims are valid, based on the evidence they presented to the court. For civil contempt charges, a judge has to conclude that a violation by the abuser more than likely took place.
Defining Criminal Contempt
An abuser facing criminal contempt charges for violating a restraining order may see jail time, fines or both. The abuser has the rights associated with criminal charges, such as the right to a trial by jury, and if the individual faces a substantial sentence, the court may appoint a criminal defense attorney for them. Criminal contempt is harder to prove due to the beyond a reasonable doubt standard. This means the court must believe with certainty, based on the evidence provided by the victim, that a violation of the order took place.
To charge the abuser in criminal court with violating the terms of a restraining order, the court must show that the abuser's actions were intentional; they could not have violated the order by accident. For example, if a husband had a restraining order that required him to not go within 500 feet of his wife, and he ran into her by accident at a restaurant, it would be hard to prove that the act was intentional. Showing intent can sometimes limit prosecutors, but there are times when prosecutors can demonstrate that the abuser knew what they were doing when they violated the restraining order's requirements.
Misdemeanor vs. Felony Charges
When an abuser violates a restraining order, some states pair the violation with another criminal act, making the charge a felony. For example, if an abuser who has a restraining order against them, drives by a home he once shared with his wife and throws a brick through the window, he may receive a criminal mischief charge and a charge for violating the restraining order. This can upgrade the charge to a felony with more severe penalties, including prison time.
Prosecutors also typically seek felony charges when an abuser's restraining order violation goes beyond breaking the no-contact rule. If the abuser threatens a victim with physical harm, securing a felony charge is easier.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.