Obtaining a Court Order

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 What is a Court Order in a Family Law Case?

A court order is a directive issued by a judge that instructs a person to either perform some identified action or to refrain from doing so. They are used in a wide variety of legal situations in both civil and criminal court proceedings.  

The average person is most likely to deal with court orders in a family law setting. There are many court orders that family law judges can issue depending on the situation. For example, a restraining order is an order issued by a judge that directs a person to refrain from some conduct that threatens harm to the person who has requested the order. 

Sometimes called a “protective order”, it directs the person named in the order to stay a certain distance away from the person seeking the order. If the person named in the order violates it, they can be arrested and charged with a crime. 

Is a Court Order the Same as a Subpoena?

A subpoena is a kind of court order, however any lawyer can issue one. A subpoena directs a named person to appear in a certain place at a certain time in order to give testimony in connection with an investigation or a legal proceeding. Attorneys General and District Attorneys can issue subpoenas for an investigation before a legal action is actually initiated. 

The following people can issue subpoenas when they are involved in a legal matter associated with the subpoena: 

  • A judge who is presiding over the legal proceeding, e.g., a trial;
  • The clerk of the court where a lawsuit is pending;
  • A private attorney who represents one of the parties to a lawsuit;
  • A government attorney, such as a District Attorney or Attorney General.

A subpoena duces tecum directs the person to appear and to bring documents or other items of physical evidence with them when they appear.

What are the Different Types Of Courts Orders in Family Law?

There are many different types of orders that can come into play in a divorce or family law case. These can be divided into two broad categories for explanation purposes. The first category involves the amount of time that the order will be in effect. There can be temporary and short term orders, or permanent ones. The second category involves whether the court order assigns duties and responsibilities to people named in the order or whether it attempts to control a family member’s physical location. 

Some court order examples would be temporary orders made before court hearings can be held to deal with pressing issues. For example, a judge might issue an order awarding temporary custody of a child that is meant to be in force only until a custody hearing can be completed and the judge can issue a permanent order regarding custody. 

In connection with awarding temporary custody, a judge might order one parent to pay child support on a temporary basis while the support issue is being heard and decided by the court. At the conclusion of the court proceeding regarding custody and child support, then the judge would issue permanent orders regarding child custody and child support.

What are Temporary vs. Permanent Orders?

Again, temporary orders are meant to have effect for a short time only. The idea is that a temporary order is provisional and lasts only until a full hearing or trial of an issue can be completed. One order that is common in family law cases is the Temporary Restraining Order, or TRO. 

One important kind of TRO in a divorce case is usually meant to stop spouses from selling or destroying marital property during a divorce, but it can also limit other things like travel. If one person in a divorce case has safety concerns or a concern that the other party will flee, a judge might be asked to issue an Emergency Protective Order (EPO) or a Child Protection Order (CPO) to help head off any domestic violence issues and protect family members. These temporary orders are made to expire by a date specified in the order, but can be extended if circumstances warrant it. 

Orders that are meant to last longer are put in writing and usually issued at the end of legal proceedings. These types of orders must be supported by evidence that is presented at a court hearing; they are not meant to be issued under emergency circumstances. Types of court orders that represent these are divorce decrees, permanent child support orders, and permanent child custody and visitation orders. These are meant to be permanent, although they can be changed later if necessary. 

What are Physical vs. Non-Physical Orders?

Another way to classify family court orders is by assessing what action they are trying to have performed or stopped. A court order that gives directions to a person regarding their physical presence can be either temporary or permanent. For example, the emergency protective court orders mentioned above are one way in which a family court can direct where a person can or cannot be. 

Restraining orders limiting how close one spouse can be to another (or to the children) are a common kind of  temporary order that a judge might issue, especially if there is a history or threat of domestic violence between the spouses. 

These types of orders can be more permanent as well. Child visitation orders can contain directions as to the physical location in which a non-custodial spouse can visit their children. Or custody orders might direct where a child should stay during different parts of the year, for example during summer vacations or on holidays. Orders can even specify where and at what time exchanges of custody will be made. 

Then there are orders that tell a spouse/parent what rights and duties they have either temporarily while the case is pending or once a divorce is final. Child support and spousal support orders are two common court orders of this type; they impose duties of payment on a spouse. TROs can be of this type in so far as they order someone to cease selling, destroying, or spending community property funds, so they direct the behavior of the parties.

How Do I Get a Court Order, and What if it’s Violated?

To obtain a court order, an open case must be pending in a court. If a person wants to obtain a court order and has not initiated a case, the person needs to file a lawsuit. Then a motion seeking an order must be filed. A motion is a legal document that is essentially a brief explanation for the judge of the type of order requested and why it is justified and necessary. 

If the order sought is to be a temporary order, the person should submit evidence with the motion, e.g., affidavits under oath giving testimony that would justify the order. 

Usually, if the court order is temporary, it lasts only until the date on which a full hearing on the motion is held. If the case goes in the favor of the person requesting the order, the judge would then issue a permanent order. 

Violation of a court order can result in a penalty. Depending on the nature of the order, a person can be arrested for violating an order and may be charged with a crime. They can suffer criminal punishment for the violation. In a civil case, depending on the nature of the violation and the case involved, the penalty can be dismissal of the violator’s case or judgment against the violator. If a person is served with an order, it is best not to ignore it, but to either plan to comply or consult a lawyer about one’s options. 

Do I Need an Attorney To Get A Court Order?

An experienced family lawyer is the best person to help you get a court order as efficiently as possible. They know where to file petitions and what kind of legal documentation is necessary. You are most likely to get the best possible outcome if you have a family lawyer with experience in seeking family law orders representing your interests.

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