Depending on your state, they are also called protective orders, protection orders, or stay-away orders. Often, restraining orders will require a person to stay away from, or not contact another person (as with a no-contact restraining order).
Who Can Lift a Restraining Order?
“Lifting” a restraining order essentially means that the order will no longer be in effect. Some restraining orders may have time limits on them, so the order automatically terminates after that time limit. For example,a temporary restraining order (or “TRO”) has a limited duration, and usually expires after a few weeks. However, permanent restraining orders are meant to last for a longer period of time (sometimes years), and can be renewed or extended.
To have a restraining order removed, you must go through the court system. Otherwise, there could be various repercussions (like being charged with violating the restraining order). Either the victim in the case or the defendant may request the court to lift the restraining order. However, the court makes the final decision on whether to lift the restraining order or to keep it in effect.
No matter who wants to have the order lifted, the procedure is the same — you must use the process set forth in the courts and allow the judge to supervise and approve any changes to the order.
What is Required in Order to Have a Restraining Order Lifted?
First, any request to have a restraining order lifted must start with filing a motion with the court. Depending on the circumstances, the motion may be called a Motion to Modify Conditions of Pretrial Release (if there are criminal charges involved) or a Motion to Lift Restraining Order. The motion must include certain information, including the names of the parties.
The motion must also state that:
- The victim agrees with lifting the restraining order (if applicable);
- The victim and defendant wish to have contact;
- The victim is voluntarily making the request (not being coerced into it); and
- The victim is not afraid of the defendant, and does not anticipate violence from the defendant.
Additionally, the motion should also specify the type of contact that the parties wish to resume.
Any request to lift a restraining order must be accompanied by appropriate evidence. Basically, the court needs evidence to see that the request to have the restraining order modified or lifted is reasonable with regards to the situation.
Some forms of evidence the court may consider include:
- Documents (such as pay stubs or certificate of completion of rehabilitation);
- Statements from other persons (such as friends, family members, or other people who are familiar with the situation);
- Evidence related to child custody or visitation, if this is an issue in the case; or
- Any records from parole or probation officers, or any other law enforcement authorities (if a person’s criminal background is at issue).
The person subject to the restraining order (the person who must stay away) has to show proof of good behavior and be in good standing with the court. Even if they do show evidence of their good behavior, the court may consider other factors in putting together a complete picture of the circumstances of the case and making a determination on whether a change in the order is warranted.
Usually there will be a hearing on the motion to lift the order. While the victim and the defendant are usually present at the hearing and may give testimony, the judge will make the final determination. Depending on your state, the court may issue a written determination the same day.
What are the Legal Consequences for Violating a Restraining Order?
Violating a restraining order is often taken very seriously by the courts, and can result in some serious legal consequences. Consequences for violating the restraining order can include:
- Contempt of court charges;
- Criminal charges (which can result in jail time or probation);
- Fines; and
- Loss of privileges (such as child visitation rights).
Depending on the state you live in, each instance of contact while the restraining order is in effect can provide grounds for a separate charge, so if the defendant violated the order three times, they can be facing three charges. Penalties may result even if the victim was the party that requested or initiated the contact.
Even if the parties have changed their minds and mutually agree to start seeing one another again, they must go through the process of having the order lifted before they resume contact. Otherwise, the defendant may be subject to charges of violating the restraining order.
Do I Need to Hire a Lawyer for Help with Lifting a Restraining Order?
The circumstances surrounding restraining orders can get complicated very quickly. If you are a victim of domestic violence, contact your local law enforcement authorities immediately. It is also in your best interests to consult a skilled family law attorney to advise you on your rights, help you navigate the legal system, and guide you through the process of obtaining any other protections necessary for you and your loved ones.
If you have been accused of violating a restraining order, it is in your best interests to consult an experienced criminal defense attorney. The right attorney can help you talk through your situation, guide you through the court system and the documents that must be filed, and present the best defense in court.