Restraining orders, also known as protection or protective orders, are orders issued by a judge that tell people to do or not do certain things. They can be used in non-criminal situations (such as directing the parties in a lawsuit to stop calling each other) but more commonly they are issued in criminal matters involving allegations of domestic violence, or similar situations where a person (the “plaintiff”) is at risk of harm from another person (the “defendant”).
Judges may be flexible in crafting a restraining order, and they will tailor the order to the facts of the given situation. There are many different types of restraining orders with different purposes and instructions. For instance, a restraining order may require the defendant to completely cease communication with the plaintiff, or it may restrict only physical contact, or it may restrict both.
If the restraining order is designed to protect the plaintiff from physical harm, it will require the defendant to stay a certain distance away from the plaintiff (for example, 1000 feet). Restraining orders can also vary in terms of how long they are enforceable – e.g., for the length of a divorce trial, for just a few days, or permanently. In addition to protection from physical harm or from harassment, restraining orders might also protect a person from other types of harm, such as economic harm or emotional harm.
What are Some Common Types of Restraining Orders?
There are several different types of restraining orders, each used in different situations to provide protection for the person seeking it. These may include:
- Temporary restraining orders are orders that last only for a short period of time (thus the name “temporary”)
- Permanent restraining orders can last for an indefinite period of time. These are often used in situations where the person is in great danger of harm, or where there is a history of repeated abuse or violations of previous restraining orders
- Mutual restraining orders place restrictions on both parties involved. These types of orders are common in situations like divorce, where both parties may have issues with each other. Mutual restraining orders are used when both parties accuse the other of harassment or threats, and the judge cannot tell who is more to blame. The intent of a mutual order is to make it clear that if either party contacts the other, there will be consequences.
How Are Restraining Orders Issued?
Someone who believes they are in danger of harm can go to the courthouse and apply for a restraining order. In an emergency, they do not need an appointment, and the order can be issued that same day, without the need to contact the defendant to see if the plaintiff’s allegations are true. In many states, if the defendant has been arrested for domestic violence, a police officer can even immediately get a brief emergency restraining order so the victim is protected until they can get an order from the court.
When asking for an order, the plaintiff must convince the judge that the order is necessary to prevent continuing or imminent harm to them. In a domestic violence situation, for example, the victim (the plaintiff) could supply a sworn statement alleging facts that support a claim of serious, imminent harm by the other person (the defendant). In most states, this requires a victim to show they have a reasonable fear of imminent physical harm.
In other states, allegations of stalking or harassment can be enough to qualify for a restraining order. In Hawaii and California, domestic violence victims don’t necessarily have to establish a fear of imminent physical harm to get a restraining order: A judge can issue the order if the victim can show the abuser is exercising “coercive control” over them (forcing them to do something, such as engaging in sexual activity).
Once the victim provides testimony and/or a sworn statement, the judge can issue a temporary order right then and there, without notice to the defendant.
When the defendant is informed that the plaintiff is seeking a restraining order against them (this usually happens within a few days), the judge will hold a hearing to determine whether to convert the temporary order into a final one.
At the hearing, the plaintiff must prove the truth of the allegations by a preponderance of the evidence, which means it is more likely than not that the plaintiff is telling the truth. It need only be a 51% chance, not the familiar, much stricter standard of proof beyond a reasonable doubt. Permanent orders (but generally not temporary ones) can usually be appealed to a higher court.
What is the Correct Procedure for Responding to a Restraining Order?
When responding to a restraining order, the best practice is to comply with the instructions and prohibitions listed in the order. If the defendant wishes to challenge the restraining order, they should make use of the channels of the court system to have the order modified or lifted.
As described above, there is a wide variety of orders that can be issued which can involve many different requirements, and it is important to read the order carefully to be sure the full set of instructions are addressed.
Violating a restraining order is not a proper response for either party. If the parties mutually agree that they no longer wish to have the restraining order in place, then they need to have the changes reviewed and approved by a judge. Failure to do so can result in strict legal consequences.
What Happens If a Restraining Order Is Violated?
Violating a restraining order can lead to serious consequences. When they learn of a violation, the police are directed by statute to arrest the defendant. If the violation is flagrant or if it is repeated, the prosecution will charge them with a crime and the judge who granted the order can issue a contempt order.
This may result in being sent to jail for a number of days, as punishment for violating a court order. In addition, fines and criminal citations can be charged to the defendant. If the violation is itself a crime, the defendant will be charged with that crime as well (for example, if the defendant appears at the plaintiff’s workplace and threatens the plaintiff with violence, that constitutes a violation of the restraining order and also the crime of assault.
Even a single violation of a court order can lead to serious consequences. If there are questions or if anything is unclear about a restraining order, it is better to check with the court first before taking any steps that might violate it.
Do I Need a Lawyer for Help with Restraining Orders?
Restraining orders are official court documents that are backed by law, and need to be responded to in the correct way. This can be difficult because the language of the order can be in legal-ese and thus hard to understand. You may need to hire a restraining order lawyer if you need assistance in obtaining, responding to, or challenging a specific restraining order.
An attorney in your area can inform you of your legal rights and can help ensure that your rights are protected. If you believe the plaintiff is not entitled to a restraining order against you, you should appear in court to present your side of the story. An attorney can be invaluable in putting together your defense.
