A restraining order (referred to in some states as a “protective order”) is an order issued by a court. The order requires an individual to refrain from communicating with or contacting the individual who requested the order from the court. Individuals seek restraining orders for several reasons. A party that is divorced can request a restraining order if that party fears stalking, physical violence, or other potentially harmful contact from the ex-spouse.
A mutual restraining order is a specific type of restraining order. A mutual restraining order prohibits both parties from taking certain actions (such as attempting to contact or visit) regarding the other party.
When Will a Court Issue a Restraining Order?
Most state laws allow for a court to issue a mutual restraining order in appropriate circumstances. When one party files for a protective order, and the other party then files for a protective order of their own, a court may issue a mutual restraining order. If either party agrees or consents to the court issuing a mutual restraining order, the court may issue the order without a hearing. Typically, though, the judge will hold a hearing. During the hearing, both parties present evidence that they have sustained threats, acts of violence, abuse, or stalking at the hands of the other party.
For the judge to issue a mutual restraining order, the judge must find that both parties acted as aggressor at some point in time. An aggressor is someone who threatens to harm or inflicts physical or mental harm on another, without legal justification. A common legal justification is self-defense.
To prevail on a claim of self-defense, a party must demonstrate that the party responded to an immediate threat of physical harm, or to actual physical harm, to protect themselves. The threat must be active at the time the party engages in self-defense. The party claiming self-defense must demonstrate that an ordinary person in their situation would have responded as they did.
Each party, when presenting evidence that they have been the victim of domestic violence or abuse by the other, may submit police reports and witness statements, in addition to the victim’s own testimony. If the judge finds that each party, on at least one occasion, acted as an aggressor without legal justification, the judge can issue a mutual restraining order.
What Does a Mutual Restraining Order Prohibit?
A mutual restraining order prohibits both parties from taking specific actions. These actions include:
- Deliberately approaching the other party within a certain distance (e.g, 500 feet, one mile);
- Attempting to contact the other party, such as by telephone or email; and
- Engaging in threats, intimidation or acts of violence (mental or physical) toward the other.
A mutual restraining order may require one or both parties to do the following:
- Move out of a shared residence;
- Refrain from visiting the other party’s school, place of employment, or residence; or
- Undergo domestic violence counseling or rehabilitation.
What are the Penalties for Violating a Mutual Restraint Order?
An individual who violates a mutual restraining order faces a number of penalties. An individual who violates the order is acting in contempt of court. Contempt of court pay be penalized by time in jail, and/or a monetary fine.
If the individual violates the order by committing further domestic abuse, the individual can be penalized as follows:
- Money Damages: A court can order payment of money damages to compensate the other party for monetary losses sustained as a result of the violation of the order. Monetary losses can include expenses, such as medical or hospital bills, incurred as a result of the abusive act.
- Additional Restraint: If a party violates the terms of the mutual restraining order, the judge can review the terms of the order. The judge may, if warranted, extend the length of time to which the order applies to that party.
- Child Custody Rights: An individual who violates the terms of the mutual restraining order by acting abusively, may forfeit child custody or visitation rights. Whenever child custody rights are at issue, a court will apply the “best interests of the child” standard.
- This means that in resolving a custody dispute or issue, the court will give primary consideration to the physical and mental needs of the child. The needs of the parent or parents are considered secondary. A child’s being exposed to violence, such as spousal abuse, can be detrimental to their well-being. A judge will give significant weight to this fact when deciding whether to modify or revoke custody rights.
Do I Need a Lawyer for Help With a Mutual Restraining Order?
If you wish to obtain or modify a restraining order or mutual restraining order, you should contact
a criminal lawyer. An experienced criminal law attorney can advise you of your options. The attorney can also represent you in court and at hearings.