The legal term restraining order refers to an order issued by a court intended to restrict a person from harming another. Restraining orders generally require that the person whom the order is issued against either does, or does not do, a specific act. An example of this would be an order requiring a person to stay 300 feet away from the person who requested the restraining order.
Alternatively, a restraining order may require that a person ceases contacting the person who requested the order. Restraining orders can last for several days, or even several years, and may also include criminal penalties if violated.
Restraining orders may also be known as protective orders. Generally, a restraining order is issued to prevent one person from physically harming another. However, a restraining order may also be issued to prevent emotional or economic harm. Restraining orders are commonly utilized in cases that involve domestic violence, harassment, stalking, or sexual assault. A restraining order may not only be used to protect a singular person, but also other family members and friends. An example of this would be a child protection order. Orders may also be put in place to to protect a business, property, or the general public.
As previously mentioned, restraining orders may last for varying amounts of time, based on the needs of the person seeking protection as well as the court who ordered the protective measure. There are a few different types of restraining orders that have different time frames:
- Emergency Protective Order (EPO): These orders are effective immediately and are generally reserved for situations in which the safety and wellbeing of a person or child is at risk. The most common example of this would be when a violent domestic dispute occurs. EPOs typically expire in a week or less, or last until a hearing can take place;
- Temporary Restraining Order (TRO): A temporary restraining order is essentially a “normal” restraining order, lasting for a limited duration as it expires within a few weeks. Or, it may last until a full restraining order hearing takes place in order to determine how long the order should be kept in place; and
- Permanent Restraining Order (PRO): These orders are intended to last for a set number of years, and may be renewed or extended if the threatening behavior has not stopped.
How Do I Obtain a Restraining Order? Can a Restraining Order Be Modified?
When requesting a restraining order, you will need to provide basic proof that you are being victimized by another party. Acceptable evidence can include physical evidence, witness testimony, and written statements. Actions that could result in the issuing of a restraining order include but are not limited to:
- Physical violence;
- Sexual assault;
- Mental abuse;
- Emotional abuse;
- Kidnapping; and
- Assault and/or battery.
Restraining orders are generally obtained in connection with a trial, or through a direct request with a judge. An example of obtaining orders in connection with a trial would be a domestic violence trial. Such restraining orders often evolve into more permanent restraining orders. Directly requesting a restraining order with a judge most commonly occurs in conjunction with emergency restraining orders, as well as temporary restraining orders.
Additionally, some restraining orders can be obtained without the other party, or the offender, being present. These are referred to as ex parte orders, and are most often provisional orders that will be later changed into more lasting orders.
Whether an order can be modified depends on the type of restraining order that was initially issued. Most often, restraining order modifications involve turning a temporary order into a more permanent order. An example of this would be a temporary restraining order issued at the beginning of a trial, to protect the victim while the trial is still running. Once the trial is complete, the judge may issue a permanent order should they find the offender guilty of the crime in question.
A restraining order may be relaxed or lifted if the offender has demonstrated that they are rehabilitated, or have completed various reformation requirements. Such requirements could include parole or probation. No matter what type of modification is required, it must go through the court system and be approved by a judge. Should the order be violated, the violator may be charged with contempt of court or some other punishment.
What Else Should I Know About Restraining Orders?
Most restraining orders are issued by a court as a result of the victimized party seeking protection. Importantly, restraining orders are not generally obtained through the prosecutor requesting it, or the judge issuing the order on their own. Thus, it is important that the victim first make a request.
However, in criminal cases the prosecution may request that the judge issues a no contact order, so as to protect the victims from the alleged perpetrators. In divorce cases, the judge may automatically issue an order that prevents either party from selling, destroying, or spending marital property until the divorce has been finalized. In fact, most courts have existing standing orders that protect marital assets.
Typically, restraining orders will contain a variety of restrictions customized to the needs of the specific situation. Some types of rules that a restraining order may put in place include:
- Staying away from a certain party, residence, or location;
- Ordering a party to have no contact with another party;
- Ordering a party to cease their abuse of another party;
- Granting a party the exclusive use of a residence or other piece of property; and/or
- Other items such as ordering a party undergo drug counseling.
A restraining order is generally considered to be a civil action as opposed to a criminal action. This means that if a court issues a restraining order, and that order is violated, the violator will not automatically be reported to the police. The person who originally requested the order must first file a request with the court for a contempt hearing. At this hearing, the judge will decide how best to punish the violator if the violation is confirmed.
There are various advocacy groups, such as battered women’s clinics, that can help a person complete restraining order forms at little to no cost. It is important to ensure that the restraining order does not conflict with or violate existing child custody or visitation orders. The court will need to modify such orders when a restraining order is issued.
Do I Need an Attorney to Get a Restraining Order?
If you need to obtain a restraining order, you should immediately consult with a skilled and knowledgeable criminal attorney. An experienced criminal attorney can guide you through the legal process and file for the order.
Additionally, they can assist you in modifying an existing order. Finally, the attorney can represent you in court as needed, as well as ensure that your safety and legal rights are protected throughout the entire process.