A restraining order is an order issued by a court that restricts another person from contacting or otherwise harming another person. Generally, a restraining order does this by requiring the individual to either do, or not do, a specific act.
An example of this is a restraining order that requires a person to maintain a specific distance, such as three hundred feet, from another person. These orders may last anywhere from several days to several years, and violators may face criminal penalties for failing to follow the order.
Restraining orders are sometimes referred to as protective orders, depending on the state. The most common restraining orders are issued in order to restrict a person from physically harming another person. However, orders may also be issued in order to prevent emotional or even economic harm.
Restraining orders are commonly utilized in cases involving domestic violence, harassment, stalking, and sexual assault. Furthermore, they are not only issued to protect a single person, but may also include other people such as family members, friends, and children, such as with a child protection order. Also, restraining orders may also be issued to protect businesses, or the general public.
The majority of restraining orders are issued by a court as a result of a person seeking protection from immediate harm. It’s not that common for a prosecutor to request a restraining order, or for a judge to issue it on their own without a request first being made. However, sometimes a restraining order may be issued without a person needing protection.
For example, in a divorce case, a judge might automatically issue a restraining order that requires both parties not to sell, destroy, spend, or otherwise dispose of marital property until the divorce has been finalized.
A temporary restraining order, or TRO, is a short term court order stating that a person must refrain from certain activities, or stay away from a certain location or person. A TRO is similar to a restraining order. However, it is not permanent and is intended to last only until the court holds a hearing to decide whether or not to grant a preliminary injunction.
In order to obtain a temporary restraining order, the person needing the TRO (typically the victim of domestic violence) will need to first and immediately report any incidents to their local authorities, such as the police. From there, you may request that the court issue a temporary restraining order, in order to protect you from any further harm. The TRO is generally issued after a party appears in court, explaining why a restraining order is necessary. It is not common for the other party to be present for this portion of the process.
If the court finds that a temporary restraining order is indeed necessary, the order will most likely be issued the same day that the person requesting the order appears in court. Additionally, the court will schedule an Order to Show Cause hearing. This ensures that both parties may appear and explain to the court why a more permanent restraining order should or should not be issued.
Order to Show Cause hearings are generally implemented in the place of a motion when an immediate solution is necessary. They are typically faster and easier to file, making them the better option when time is of the essence. The hearing will usually occur fifteen to twenty days after the temporary restraining order has been issued.
As previously mentioned, temporary restraining orders become effective as soon as they are served to the person who is being restrained by the order, i.e. the alleged abuser. Local police will serve the temporary restraining order to the alleged abuser. The order will remain in effect until the Order to Show Cause hearing. Any violations of the TRO will likely result in punishment for the violator. For a misdemeanor restraining order violation, the sentence could be up to one year in jail and a fine of up to $1,000. Further, the defendant may be required to pay victim restitution, attend counseling, relinquish any personal firearms, or be subject to other restrictions.
Violating a restraining order can be considered a felony in some states, such as California. A felony conviction typically occurs when it is a second offense, and/or a victim sustains physical injury as a result of the violation. If convicted, the defendant may face probation, as well as up to one year in a county jail, or sixteen months to three years in prison with a fine of up to $10,000.
Although TROs are typically obtained through your local court, it is not impossible to obtain an order if the court is closed. In such cases, you would contact your local police department. In some jurisdictions, the police have the power to issue an emergency protective order. This order has the same effect as a temporary restraining order, and lasts until the next business day that the court is open.
In order to obtain a more permanent restraining order, you will need to attend the previously discussed Order to Show Cause hearing. At the hearing, both parties will be permitted to prove to the court why a more permanent restraining order should or should not be issued. Upon hearing the evidence, the court can decide whether there is enough reason to issue a more permanent restraining order. They would then order the alleged abuser to continue to refrain from certain activities, or to stay away from certain people and/or places.
A skilled and knowledgeable family law attorney will be a valuable asset to your case in pursuing a restraining order, whether temporary or permanent. An experienced attorney can inform you of your legal rights, assist you in obtaining the restraining order, and inform you of additional potential legal remedies. They can also assist you in getting any other protections that may be necessary for you and your loved ones.
If you have been accused of domestic violence and are being issued a restraining order, you will need to speak with a criminal attorney in order to understand your rights, as well as to obtain assistance in your Order to Show Cause hearing.