Spurned lovers in sitcoms are threatened with restraining orders so frequently, one wonders if the other characters understand the concept. To warrant what is also known as a protective order, some form of intimidation or abuse must be clear to a court. Sitcoms made it a joke, but this is a great option for victims of abuse who need a fast and legally binding way to find peace.
If you or anyone you know fears for their safety due to the actions of an abusive (current or ex) partner, take action immediately. Read on to see how a restraining order works and whether it is the right solution for you. (Note that laws vary based on your state of residence.)
What is a restraining order?
A restraining order is a court order intended to protect you from further harm from someone who has hurt you; to keep the abuser away from you, or to stop harassing you, or keep the abuser from the scene of the violence, which may include your home, place of work, or apartment. It is a civil order and it does not give the abuser a criminal record.
Who can get a restraining order?
A victim of domestic violence can obtain a Restraining Order. Who is that, specifically? The term includes any person who has been subjected to domestic abuse by a spouse or a present or former household member.
A victim, of any age, who has been subjected to domestic violence by a person who she/he says will be the father/mother of the child when the pregnancy is carried to term is also covered by this law. A victim, of any age, also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
Domestic violence means the occurrence of one or more of the following acts committed against a victim by an adult or an emancipated minor:
- Criminal mischief
- Criminal restraint
- Terrorist threats
- Criminal sexual contact
- Criminal trespass
- False imprisonment
- Sexual assault
What does a Restraining Order do?
If you are a victim of domestic violence, a judge can sign an Order of Protection that requires the abuser to obey the orders of the court. The protective order is very specific in as far as what the abuser can and can’t do.
- The abuser can be ordered not to have any contact with you, in person or by phone, at home, work, or almost anywhere you ask the court to put in the order. The order against contact may also protect other people in your family.
- The court can order the abuser to leave the house or apartment that you and the abuser share; even if it is in the abuser's name.
- Except in unusual situations, the court will grant you custody of your minor children. In some states, the court can also order the abuser to pay child support and support for you. The abuser may also be granted visitation with the child/children under certain conditions. If the children are in danger of abuse, you should let the judge know why you think so.
- In some states the court may also order the abuser to pay for costs that resulted from the abuse, for example; household bills that are due right away, medical/dental treatment, moving expenses, loss of earnings. The judge can also make the abuser pay your attorney's fees, and can make the abuser pay damages to you or other people that helped you or got hurt by the abuser.
- The judge may order the abuser to receive professional domestic violence counseling, or tell the abuser to get evaluated or to go to AA. You can agree to go to counseling if you want to (or to a free program like AA, AlAnon, or a domestic violence program), but the judge should only make it an order for the abuser.
- The judge can order the police to escort the abuser to remove personal items from the residence, or shared place of business so that you are protected by the police during any necessary contact.
- The judge has the power under the law to order anything else that will help to protect you, as long as you agree to it.
How long does the restraining order last?
When you first get protection under the law, it is only temporary. The order is called a T.R.O. for Temporary Restraining Order. You must return to court on the date indicated in the T.R.O., which will be about 10 days later in most states. Both you and the abuser will be asked to appear in court on that date. During the 10-day period, the police or Sheriff's Office will serve the abuser with a copy of the order so the abuser will know when the hearing is scheduled. Keep a copy of the order with you and give a copy to the police in any town where you think the abuser might bother you.
A court date will be set and you will appear before a judge. You will have the opportunity to explain your situation to the judge. You will usually appear before a judge without the abuser being present.
When you return for your second appearance in court, on the date indicated in your order, the abuser has a right to be present. Both you and the abuser will have the opportunity to tell the judge what happened between you. You are allowed to bring a lawyer to this hearing, but it is purely your choice. At the end of this hearing, the judge will determine if you should receive a final order, for how long, and under what conditions.
If the abuser does not appear at the hearing, the judge will either continue the temporary order in effect until the abuser can be brought into court, or will enter a final order if there is proof that the abuser was served with the T.R.O./Notice to Appear. The sheriff or police should have proof of service.
You can not be asked or told to serve papers on the abuser. If you don't appear, and have not made arrangements with the court to reschedule the case, someone from the court will attempt to contact you by phone at home or at work, or they may send you a certified letter if you have no phone. The courts take domestic violence very seriously, and will be worried about your safety if you do not call. If they cannot find you, your restraining order may be dismissed and you will no longer have the protection granted in the order.
The court will give you a copy of the order. Be sure to ask someone before you leave the court if there is anything you don't understand. Carry it with you at all times. If the abuser does not obey the order, call the police. The police have to arrest an abuser who violates any part of the order that protects you from threats or violence.
You have the right to police protection. If you carry your order with you at all times, it will be easier for the police to understand your current situation. If you lose your order, or it gets destroyed, return to the court and obtain another copy.
7. What can you do if the abuser violates the order?
If the abuser violates any of the other parts of the order, call the police. For some violations (having contact with you or coming to the house, for example) or if the abuser violated the order by committing a crime, (for example, stalking you, harassing you or trespassing) the local police must sign a criminal complaint for contempt of the court order.
8. Can I file criminal charges?
You can file criminal charges against the abuser for acts of domestic violence, because they are all crimes. Criminal charges can only be filed at your local police department. For very serious crimes, a prosecutor may take your case to state criminal court. You do not have to file criminal charges, but the law does allow you to file them if you choose, even if you also get a restraining order. In most states you have at least a year after any incident to file criminal charges. The police can also file charges on their own and must do so when you show signs of injury or if a weapon was used. If the abuser is found guilty of the criminal charges, the court can impose fines, probation, or even jail as punishment.