Protective Orders and Restraining Orders
Protective orders and restraining orders are court orders that intend to safeguard survivors of family violence, sexual abuse, trafficking, or stalking from further hostility by prohibiting contact by the abuser. The court will look at the evidence pointing to an incident of domestic violence and assess the likelihood of its reoccurrence in the future. Such orders are considered civil injunctions and do not create a criminal record; however, the violation of these orders is a crime.
Protective orders and restraining orders protect survivors against further harm or harassment, and prohibit the offender from acting in any manner injurious to the protected person(s). These orders also signal to third parties involved with your family (schools, employers, daycares, the police) that something serious occurred. If a violation of an order occurs in the future (while it is in effect), the police will typically act swiftly and respond to any incidents immediately.
Understanding Protective Orders
For victims of domestic violence, a protective order is a legal option for intervention because it offers victims several types of protections. The accused is ordered to maintain a certain distance from the protected parties. The court order forbids offenders from going near the protected person(s) at home, their place of employment, school, or any other public or private setting. It also restrains the accused from performing any action that may threaten or harass a survivor directly or indirectly. Such restrictions typically also prohibit the aggressor from having any direct or indirect communication with the victim.
A protective order imposes clear boundaries and protections. It can specify the minimum distance the accused must maintain concerning the victim, impose limitations on a parent’s right to exercise possession of their children, and order the removal of a party from the family home even if he or she owns it. The abuser may also be ordered to pay the other for the support of children, medical expenses, household expenses, and legal expenses.
In the event a protective order is issued, local law enforcement agencies will receive a copy of the order, and they will be responsible for executing and enforcing it. Any violation of the order makes the offender liable to be arrested, fined, and imprisoned. It’s also important to note that the protected person cannot agree for the abuse to violate the protective order.
Temporary Restraining Orders
A temporary restraining order can be requested and issued to temporarily enjoin a party for an act that can threaten the safety or emotional well-being of a spouse and/or child, or reduce the value of or limit a party’s access to property. A temporary restraining order is requested with an accompanying affidavit that details the problematic behaviors one party is displaying as well as the associated concerns. The court will consider the request and then determine whether a Temporary Restraining Order should be in effect until the court can hold a full hearing on the issues. As the name suggests, a Temporary Restraining Order is temporary in duration. They include a date for a hearing on Temporary Orders and/or a Temporary Injunction on the acts set forth in the restraining order. It’s considered a “bandaid” to restore peace and safety to the family until further investigation and a hearing can occur.
Child abuse, physical threats of violence against themselves or others, threats or actions to limit a spouse’s access to money/financial accounts, and diverting or wasting assets are all issues that may necessitate a Temporary Restraining Order.
Applying for and obtaining a Temporary Restraining Order is a sensitive and nuanced practice. Different jurisdictions—and even courts within the same jurisdiction—handle these requests differently, so it’s crucial to work with an attorney that is experienced and understands the process. It’s often not enough to obtain a Temporary Restraining Order. An experienced attorney can properly advise you on how to protect yourself (including providing the order to daycares, schools, banks, etc.). If you believe you require a Temporary Restraining Order, we recommend scheduling a consultation with one of our managing partners so you can obtain swift and comprehensive protection.
The court considers requests for protective orders citing family violence on a case-by-case basis to determine if such an order is appropriate and necessary. Adults can request a protective order for themselves, their child, or for any member of the household, regardless of age.
The applicant must file a detailed request for what kind of restraints they want the court to order. Incidents or threats of family violence are sufficient grounds for a court to grant a protective order, but the duration of such an order depends on many factors.
A protective order cannot guarantee safety, and unfortunately, a person could choose to ignore the protective order. Still, the risk of criminal charges for violating a protective order is often enough to deter abusers and provide some peace of mind to victims and their families when combined with an overall safety plan.
There are no fees to file for a protective order, and based on the circumstances the case presents, the court may order the offender to pay the attorney’s fees for the survivor.