Domestic Violence | Restraining Orders

 

Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.

 

The domestic violence laws say “abuse” is:

Physically hurting or trying to hurt someone, intentionally or recklessly;

Sexual assault;

Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone);

Behavior like harassing, stalking, threatening, or hitting someone;

Generally disturbing someone’s peace, or;

Destroying someone’s personal property.

 

The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets. Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.

 

If you are being abused in any of these ways or you feel afraid or controlled by your partner or someone you are close with, it may help you to talk to a experienced Domestic Violence Attorney or domestic violence counselor, even if you do not want (or are not sure if you want) to ask for legal protection.

 

Domestic Violence Restraining Orders

A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with generally speaking.You can ask for a domestic violence restraining order if: A person has abused (or threatened to abuse) you; AND You have a close relationship with that person. 

 

If you do not qualify for a domestic violence restraining order, there are sometimes other kinds of orders you can ask for: Civil harassment restraining order (can be used for neighbors, roommates, coworkers, or more distant family members like cousins, uncle or aunt, etc.). Elder or dependent adult abuse restraining order (if the person being abused is 65 or older; or between 18 and 64 and a dependent adult). Workplace violence restraining order (filed by an employer to protect an employee from violence, stalking, or harassment by another person). If you are not sure what kind of restraining order you can request, contact our office and speak with one of our experienced Domestic Violence Attorneys.

 

What a restraining order CAN do

In certain circumstances, a restraining order is a court order. It can order the restrained person to: Not contact or go near you, your children, other relatives, or others who live with you; Stay away from your home, work, or your children’s schools; Move out of your house (even if you live together); Not have a gun; Follow child custody and visitation orders; Pay child support; Pay spousal or partner support (if you are married or domestic partners); Stay away from any of your pets; Pay certain bills; and Release or return certain property.  And your restraining order works anywhere in the United States. 

What a restraining order CANNOT do

A restraining order cannot: End your marriage or domestic partnership. It is NOT a divorce.  Establish parentage (paternity) of your children with the restrained person (if you are not married to, or in a domestic partnership with, him or her).

 

Effect of a restraining order on the restrained person

For the person to be restrained, the consequences of having a court order against him or her can be very severe. He or she may not be able to go to certain places or to do certain things. He or she might have to move out of his or her home. It may affect his or her ability to see his or her children. He or she will generally not be able to own a gun. (He or she will have to turn in or sell any firearms he or she has, and will not be able to buy a gun while the restraining order is in effect.) The restraining order may affect his or her immigration status. If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both. 

 

Types of Domestic Violence Restraining Orders

Emergency Protective Order (EPO):  An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night. The emergency protective order starts right away and can remain for a specified period of time that gives the victim of the abuse enough time to go to court to file for a temporary restraining order. To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a “TRO”). 

 

Temporary Restraining Order (TRO)

When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order. Temporary restraining orders usually last until the court hearing date. 

 

Permanent Restraining Order

They are not really “permanent” because they usually last for a specified number of years depending upon your jurisdiction. 

 

Criminal Protective Order

Criminal Protective Order or “Stay-Away” Order Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, However, it may last longer when the case is over.

 

The Restraining Order Process

When someone asks for a domestic violence restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are: The person wanting protection files court forms asking for the domestic violence restraining order. There is generally NO fee to file. The judge will decide whether or not to make the order.  If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until your court date. The court date will be on the paperwork. These temporary orders can include issues like: Ordering the restrained person to stay away and have no contact with the protected person (and other protected people and family pets); Child custody; Who can use the family home; or Who can use other property, like a car. The restrained person has the right to file an answer to the restraining order request, explaining his or her side of the story. Both sides go to the court hearing.If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will not be a restraining order. If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account. At the hearing, the judge will decide to continue or cancel the temporary restraining order. If the judge decides to extend the temporary order, the “permanent” order may last for a designated period of time

 

If you are involved in a situation where you believe that you need a  restraining order, please feel free to Contact Us to immediately speak with an attorney for free.  We will listen to your story, answer your questions, discuss your options, and get you started in the right direction.