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Restraining Order

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What is a Restraining Order?

A restraining order is a type of court order that requires an individual to either do, or not do specific acts. Restraining orders are typically issued in cases involving:

What Kinds of Restraining Orders Are There?

There are several kinds of restraining orders. These include: 

  • Emergency Protective Order (EPO): These orders go into effect immediately. They usually expire in less than a week. EPOs are usually requested by a police agency when a violent domestic dispute call arises.
  • Temporary Restraining Orders (TROs): TROs are usually granted when someone is threatened with immediate physical harm. TROs can be issued without providing an opportunity for the restricted party to represent themselves in court. However, TROs are only enforceable for a short period of time. To make a TRO permanent, both parties must have an opportunity to present their case before a judge.
  • Domestic Violence Restraining Order: a restraining order issued in response to violence between spouses, relatives, or persons in a romantic relationship. Domestic orders differ from EPOs and TROs in that domestic orders usually last longer and can be renewed.
  • Civil Harassment Orders: Available when you've been threatened, stalked or abused by someone other than a person with whom you have a close relationship (e.g. roommates, neighbors, or complete strangers).
  • Workplace Violence Prevention Restraining Order: An order to protect an employee at a workplace from violence or harassment. The order can force an individual not to threaten, harass, or contact an employee.
  • Juvenile Restraining Order: Juvenile restraining orders are exactly like civil harassment orders, except that these orders apply to minors, people under the age of 18, rather than legal adults.
  • Dependent Adult or Elder Abuse Orders: Available for dependent adults or elders who have been threatened or abused.

Note that the names, procedures to obtain the orders, effects and time coverage may differ from state to state.

What Do Restraining Orders Typically Say?

Restraining orders can include a wide range of terms and provisions. They commonly impose restrictions such as:

  • Prohibiting a party from physically contacting, communicating with, or attempting to communicate with another person (such as prohibiting the defendant from communicating with the victim).
  • Prohibiting the person from coming within a certain distance of a victim (such as 15 feet; commonly known as a “stay-away order”).
  • Limiting the days, hours and times that a parent can see or visit with a child.
  • Prohibiting a party from using a communal property (sometimes referred to as exclusive use, this can occur in divorces allowing only one spouse to use the family home).

The terms of restraining orders will vary according to the needs of the party and the laws of state. Restraining orders can either be temporary or permanent. In addition, the court can issue emergency orders that can be obtained very quickly if the plaintiff is in immediate danger.

How Do I Obtain a Restraining Order?

There are different procedures depending on the form of restraining order being pursued. In a divorce or custody trial, permanent restraining orders may be issued at the end of the trial process. However, in some cases more immediate protection is needed, especially if the person is facing an immediate risk of physical harm. 

This can often be the case in domestic violence and harassment proceedings. In such cases, it may be possible to file for a temporary restraining order, or an emergency order, as these can be issued relatively quickly. While they still need evidence in support of the order, they can sometimes be issued “ex parte”, or without the defendant being present during the hearing. 

What are the Penalties for Violating a Restraining Order?

Violating a restraining order is highly discouraged, as they can lead to consequences such as court fines, contempt orders, and in some cases, jail or prison time. Also, violations of court orders can affect other areas of life such as child visitation.

Can a Restraining Order Be Lifted?

Temporary and emergency restraining orders generally expire after a set period and require no additional legal action. However, permanent restraining orders generally require an individual to petition with the court and explain why the order should be cancelled or shortened. The decision to lift the restraining order is completely within the judge’s discretion. The judge will consider several factors including:

  • Whether there is still a risk of harm to the person the order is protecting;
  • Whether that person and all the affected parties agree to the decision; and/or
  • Whether the defendant will suffer extreme hardship if the order isn’t lifted.

Can a Person Subject to a Restraining Order Possess a Firearm?

While federal law expressly states that a person convicted of misdemeanor domestic violence cannot own or purchase a firearm, the states must be the ones to enforce the law. Often, the judge presiding over the case can issue an order for the defendant to give up their firearms, but it is also up to the local police to follow the order and thoroughly seize all of the defendant’s firearms. 

Federal law also does not apply to situations where the person who needs the restraining order is not considered a spouse or a child. It also does not always apply to stalkers. This means that the removal of firearms is often dependent on the judge’s discretion. It is important to inform the judge if you believe that the defendant owns or has access to firearms, as studies show that victims are 5 times more likely to be killed if the abuser has access to firearms. 

Do I Need a Lawyer for Help with a Restraining Order?

If you have any questions, legal inquiries, or disputes over a restraining order, it’s in your best interest to hire an experienced criminal lawyer or family lawyer. Your lawyer can provide you with immediate legal advice and representation when it comes to complex issues like restraining orders.

Photo of page author John Kirby

, LegalMatch Legal Writer

Last Modified: 09-07-2017 05:01 PM PDT

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