An order of protection is a special type of court order that requires a person to take certain actions, or to cease certain conduct towards another person. Also called a “restraining order”, orders of protection are commonly issued in situations involving domestic abuse, stalking and other similar issues. Generally, the goal of an order of protection is to protect victims of domestic abuse by limiting the perpetrator’s access to the victim.
For example, an order of protection may prohibit a violent offender from contacting, communicating, or coming within a certain distance of the person who needs protection. The main aim of most protection orders is to prevent an abuser from harming their victim again by ensuring that they do not have the opportunity.
Once signed by a judge, an order of protection usually requires the abuser to stay away from the victim and have no contact with them. While an order does not necessarily prevent abuse, it gives the victim the ability to notify police if the abuser violates the terms of the order. The police can then arrest and charge the abuser for violation of the order.
Most courts offer various types of orders, including emergency protective orders (“EPO”) and permanent protective orders (“PPO”). A temporary order can be issued without a hearing upon application of the victim. It provides victims with immediate protection, but can only last for a limited period of time, e.g. 20 to 30 days, or until a hearing on a petition for a permanent order can take place. If a person wants a permanent order of protection or restraining order, the person must file a separate petition for a permanent order of protection.
At the hearing, a judge determines if the situation warrants a permanent order of protection that can last for a longer period of time than a temporary order does. If the judge grants a permanent order, it can extend the protection for a year or more.
How Do I Get an Order of Protection
The first step is to prepare a petition for a temporary protective order and a petition for a permanent protective order and file them with the clerk of the appropriate court. Most courts today have document templates that are available online, so a person can prepare them on their computer.
The petitions should then be filed with the clerk of the appropriate court. The appropriate court is a court in any of the following locations:
- The county where the person requesting the order lives;
- The county in which the abuser lives;
- The county in which the abuse took place;
- In any county where the person requesting the order and the abuser have had a family court case.
When the person seeking the order files their documents in support of their request, they should ask the clerk of the court to schedule a hearing for the request for a permanent order of protection. It is important to remember that a person can get a temporary order without having a hearing at which the abuser can appear, but obtaining a permanent order requires a hearing at which both parties have the right to appear and argue their respective cases.
After filing the petition for an order of protection, the person who filed it must deliver a copy of the petition to the abuser. Generally, this can be done in any of the following ways:
- County Sheriff: The county sheriff can make deliveries. Often, they will deliver it for free if the person has a temporary domestic violence restraining order;
- Process Server: A professional process server can make the delivery. This is a private business which makes deliveries of court papers for a fee. Process servers can be found online or in a phone book;
- Any Adult: Any person who is 18 or older who is not a party to the case can deliver the petition.
A person who has petitioned the court for an order of protection wants to prepare their evidence to present to the court in support of their petition. Some evidence that can serve this purpose is as follows:
- Documentation of Physical Abuse: If possible, a person wants to present evidence of any physical violence inflicted on them by the person who is to be the subject to the order of protection;
- Photographs of Injuries: Photographs of bruises, cuts on the victim’s face or body or other visible, physical injuries sustained;
- Photographs of Property Damage: Photographs or other evidence of any damage the abuser may have caused to the victim’s property;
- Medical Records: Medical records which show the abuse inflicted on either the victim or the victim’s children, if the order of protection is supposed to keep the abuser away from the victim’s children as well as the victim;
- Police Reports: Copies of any police reports filed after a violent incident. The judge who hears a petition would be interested in seeing any police reports relating to the case.
Evidence of any emotional abuse that may have been inflicted could also be relevant. If the victim has been harassed, stalked, or verbally threatened, then a person seeking an order should try to present evidence of that intimidation as well. This may take the following form:
- Communications: Threatening communications, such as letters, emails, notes, or phone messages;
- Video Evidence: Any evidence that the abuser is stalking the victim, including videotape or photographic evidence;
- Victim’s Notes: The victim’s own notes of their experience, hopefully made soon after any incidents of abuse, stalking or harassment;
- Police Reports: Copies of any police reports that have been filed in response to stalking, harassment or threats;
- Witness Testimony: If someone has witnessed the abuse, then the person seeking a protective order wants to arrange to have that person testify at the hearing.
It might be possible to have a witness testify by affidavit. An affidavit is a sworn statement. Typically, an affidavit should be submitted with the petition for an order of protection when that is filed with the court. If the person cannot testify by affidavit because that is not allowed by court rules, then the person seeking the order should serve the witness with a subpoena to ensure that they attend the hearing and testify for them.
To get a copy of a police report, a person can visit the station for the police that responded to the call for help made when any incidents of abuse took place.
What Do Orders of Protection Cover?
Orders of protection are issued on a case-by-case basis and are specifically drafted according to the needs of the victim. Protection orders may cover such conduct as the following:
- Visits: Whether the abuser is forbidden to see or visit the victim;
- Proximity: Whether the offender is required to keep a certain distance from the victim, such as 100 feet away at all times;
- Stay-away Orders: Whether the abuser must stay away from the victim’s home, place of employment and any other places frequented by the victim;
- Communications: Guidelines as to whether any type of communication between the victim and the abuser is allowed or forbidden;
- Length of Time: How long the order is going to last;
- Other Provisions: Various other provisions as needed.
Orders of protection in some states may have different content. Some states offer a variety of orders for different situations and the content of these orders may be different from each other. Again, it depends on the law of the state in which the order is sought.
How Long Do Orders of Protection Last?
The life of a protective order depends on whether the order is temporary or permanent. Basically, any order that directly affects a person cannot be issued unless the person whose conduct is affected by the order has had an opportunity to appear in court and be heard. That means they must be given an opportunity to respond to a petition for a protective order that limits their conduct.
A court can, however, issue a temporary protective order before a hearing is held. The temporary order usually lasts for only 20 to 30 days, depending on the law in the state where the person seeks the order. Within the 20- or 30-day period, a hearing has to take place.
At the conclusion of the hearing, the court can issue a permanent order of protection, if the court believes it is justified by the evidence presented at the hearing. Or, if the judge determines that a permanent order is not justified, the judge would not issue the order and the temporary order would expire and no longer have any force or effect.
A permanent order can require the offender to stay away from the victim for a period of years. The order states the period of time for which it is effective. It can usually only be lifted through the judge’s orders before it is set to expire.
What Is the Penalty for Violation of an Order of Protection
The exact penalty for violating an order of protection depends on the law in the state where the order is issued and the violation occurs. In North Carolina, for example, a first offense is a Class 1 misdemeanor that is punished by up to 5 months in jail.
However, a third or subsequent violation of an order can be charged as a felony, and the perpetrator could be sentenced to up to 39 months in prison. A perpetrator can also be charged with a Class H felony and face up to 39 months in prison, if they are in possession of a deadly weapon when caught violating an order of protection even if it is a first offense.
Other states have different punishments. In Colorado, a first violation is charged as a misdemeanor and the penalty is imprisonment for up to 12 months in jail and/or a fine of $1,000. So, again, the exact penalty depends on state law.
Of course, if the violation involves commission of another crime, such as assault, battery, or being a felon in possession of a firearm, the abuser may be charged with that crime as well and punished in whatever way state law prescribes for the crime.
Do I Need a Lawyer for Help With an Order of Protection?
Courts today make great efforts to make it possible to get orders of protection when they are needed. The process can, however, become complicated and technical. You may want to consult a protection order lawyer, if you need help obtaining or enforcing a protection order.
Your lawyer can review the options for you and is familiar with the process of petitioning for an order. If you need to file a petition or attend a court hearing, a lawyer can represent you during the process, preparing the documentation and attending your hearing. Your lawyer can give you the best chance of succeeding with your petition for an order of protection.
If you have been charged with violating an order of protection or a restraining order, you want to consult a criminal defense lawyer.