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Restraining Orders

Restraining Orders

Restraining orders (which may also be known as “protective orders”) are orders issued by a court to protect people, businesses, or the general public from harm in situations where there is an allegation of domestic violence, stalking, harassment, assault, or sexual assault.

The legal term restraining order refers to an order issued by a court intended to restrict a person from harming another. Restraining orders generally require that the person whom the order is issued against either does, or does not do, a specific act. An example of this would be an order requiring a person to stay 300 feet away from the person who requested the restraining order.

Alternatively, a restraining order may require that a person ceases contacting the person who requested the order. Restraining orders can last for several days, or even several years, and may also include criminal penalties if violated.

Restraining orders may also be known as protective orders. Generally, a restraining order is issued to prevent one person from physically harming another. However, a restraining order may also be issued to prevent emotional or economic harm. Restraining orders are commonly utilized in cases that involve domestic violence, harassment, stalking, or sexual assault. A restraining order may not only be used to protect a singular person, but also other family members and friends. An example of this would be a child protection order. Orders may also be put in place to to protect a business, property, or the general public.

As previously mentioned, restraining orders may last for varying amounts of time, based on the needs of the person seeking protection as well as the court who ordered the protective measure. There are a few different types of restraining orders that have different time frames:

Different Types of Restraining Orders

There are several different types of restraining orders that a court might use.

Temporary Restraining Order (TRO): this is a restraining order that is in effect until the court can hold a hearing to review the facts surrounding the need for the order. A TRO will usually have a set expiration date, or will last until the court hearing. At the hearing the court will decide if there is a need for a long term restraining order and if so, how long it should last.

Emergency Protective Order (EPO): An emergency protective order is a restraining order issued by the police after responding to the scene of a domestic violence case. An EPO is effective immediately and usually lasts no longer that a week. In that time the person can file for a long term order.

Permanent Restraining Order (PRO): Permanent restraining orders are put into effect after a court case is finalized will last for years, if not forever. Some specific examples of PROs include:

  • Domestic Violence Restraining Order: These are specifically ordered after a domestic violence case. These orders can last for years, or in some cases, for the abuser's lifetime. The order can protect children, other family members, roommates, and/or the domestic violence victim's current romantic partners.
  • Civil Harassment Order: When victims need protection from people who are not family members, the type of restraining order is a civil harassment order. In these cases the abuser is usually a friend, acquaintance, or stranger.
  • Workplace Violence Protection Order: Several states allow an employer to ask the court for a restraining order to protect their employees from harassment, violence, or threats of violence in the workplace.
  • Juvenile Restraining Order: a juvenile restraining order is similar to a civil harassment order, but is intended to protect a juvenile (person under the age of 18) from harassment or threats of violence by a non-family member. The order can be issued against another juvenile or an adult.
  • Dependent Adult or Elder Abuse Order: Some adults, because of age and/or mental or physical incapacity, might be at risk of abuse. A restraining order can be obtained on their behalf to protect them against potential abusers.

Temporary Restraining Order (“TRO”)

A temporary restraining order, or TRO, is a short term court order. This order states that a person must refrain from specific activities, or they must stay away from a certain location or person. A TRO is not permanent, and is intended to last only until the court holds a hearing to decide whether or not to grant a preliminary injunction. The differences between the two will be further discussed later on.

Under TRO law, in order to obtain a temporary restraining order, the person needing the TRO will need to immediately report any incidents to their local authorities. The person needing the TRO is typically the victim of domestic violence, and local authorities would most likely be the police. From there, you would request that the court issue a TRO in order to protect you from experiencing any further harm. The temporary order is generally issued after a party appears in court to explain why the order is necessary. Generally speaking, the other party is not present for this portion of the process.

Should the court determine that a temporary restraining order is necessary, the order will most likely be issued on the same day that the person requesting the order appears in court. Additionally, the court will schedule an Order to Show Cause hearing. This hearing ensures that both parties have the opportunity to explain to the court why a more permanent restraining order should or should not be issued.

TROs are generally obtained through your local court; however, it is not impossible to obtain an order if the court is closed. You would contact your local police department, as in some jurisdictions, the police have the power to issue an emergency protective order. This order has the same effect as a temporary restraining order, and will last until the next business day that the court is open.

Temporary Restraining Order (“TRO”) VS. Preliminary Injunction

A preliminary injunction is an order intended to maintain the status quo. It prohibits an action while the associated court case is being decided. It is a specific type of temporary injunction which can be issued before trial, but after the parties have had the opportunity to be heard. A preliminary injunction can only be issued if the party requesting the injunction is able to prove that they will likely prevail at trial. 

An example of this would be if the person alleging domestic abuse provides convincing evidence that the domestic abuse truly occurred. Another example would be if one person is claiming ownership to a house. They would need to provide sufficient evidence that they are indeed the rightful owner. 

In both examples, a judge may enter a preliminary injunction until the trial is concluded. This prevents a party from taking irreversible action between the hearing and the end of trial. As such, a preliminary injunction is similar to a TRO, but is only entered after a formal court hearing. This would be the best demonstration of temporary restraining order vs preliminary injunction.

Permanent Restraining Order

a permanent restraining order lasts for longer periods of time and can be put into effect for as many as several weeks to years, and in some instances, for an indefinite amount of time. They are often used as a means of protection for victims of certain crimes, such as domestic abuse, child abuse, sexual assault, harassment, stalking, and other offenses.

They are also fairly common in divorce cases, especially when the divorce is based on a history of recurring abuse patterns.

The terms of a permanent restraining order typically require an offender to obey the following conduct:

  • Refrain from communicating with or contacting the victim (including both in person and via phone, mail, e-mail, social media channels, etc.);
  • Stay a specified distance away from a victim or away from areas where the victim is frequently located (such as home, school, or work environments);
  • Stop actions of abuse or violence towards the victim;
  • Forfeit child custody and transfer custodial rights to the other parent;
  • Make monthly child support payments;
  • Prevent them from selling marital property; and
  • Surrender use of a family car and hand over the keys to the victim.

In addition, a permanent restraining order can sometimes be referred to as a “protective order”, an “order after a hearing”, or simply a “restraining order.” Unlike an emergency or a temporary restraining order, a permanent restraining order usually will go into effect only after the criminal or divorce trial has ended. In other words, they become a part of the final judgment issued in the trial.

Permanent Restraining Order Modification

It is possible to modify a permanent restraining order. Permanent restraining orders can usually be extended, renewed, or modified with additional provisions at the request of the victim.

The petitioner would have to file a request with a judge who will then review the restraining order in light of any changed circumstances. If any children are included in or associated with the restraining order, the judge will have to make their determination based on the child's best interest standard.

In some cases, the offender may also be able to request to have the restraining order modified. However, this is much more difficult to do than if the victim is the one requesting it. The offender will most likely have to submit evidence that a modification would not place the other party in any further danger.

Lifting of Permanent Restraining Order

Although it may be a challenge, there are also some cases where a permanent restraining order may be lifted or terminated. The reason for this is because the term “permanent” does not necessarily mean that the restraining order will be enforceable forever.

In most instances, permanent simply means that the restraining order will be enforceable for the specified period of time that is mandated by the court or until a party requests a change.

An offender who is subject to a permanent restraining order may be able to file a request to have the order lifted. They will need to supply evidence that shows they have been rehabilitated, such as a certificate of completion from a counseling course. They may also need to obtain the consent of the victim and/or the victim's children if any are involved in the matter.

Automatic Restraining Orders

An automatic restraining order is a very specific kind of restraining order. It is generally issued in connection with divorce proceedings. Unlike most other types of restraining orders, automatic restraining orders don't really have to do with protecting the parties from threats or risks of physical violence or abuse.

Instead, an automatic restraining order has to do with each party's bank accounts and monetary or financial assets. Basically, the automatic restraining order puts restrictions on the party's bank accounts and access to them. The order instructs them that they can only use their money for “reasonable living expenses” during the divorce proceedings. 

This is to prevent one of the main problems in many divorce settings, that is, where one spouse is hiding assets from the other party to avoid having to pay for them or split property with them. An automatic restraining order typically prevents the party from:

  • Hiding financial assets or money from the other spouse or from the court;
  • Moving money from account to account to avoid declaring the amounts;
  • Transferring money to other persons for the purpose of being accountable for it; and
  • Any other actions intended to conceal the existence of assets in connection with the divorce or legal separation (such as shifting expenses to a business owned by the spouse).

Also, generally speaking, automatic restraining orders usually apply to both parties in the divorce.  However, it can be somewhat common for only one party to file for an automatic restraining order against the other. This can happen if one partner has significantly more assets than the other, or if there are other issues involved like child or spousal support

Legal Consequences for Violating an Automatic Restraining Order

Yes- automatic restraining orders are formally issued by a judge in a court of law. Because of this, they are enforceable under state and local laws. Liability for hiding assets can result in serious legal consequences such as a contempt of court order. This can result in court fines or other similar penalties.

In addition, violating an automatic restraining order can affect that party's rights in many other areas of their lives. Examples of this include their rights to child custody or their rights to visitation hours.  

Restraining Orders Duration

How long a restraining order lasts depends on the type of order and the specific facts of the case. Restraining orders that are issued before the court has the opportunity to review the facts will only last for a few days or weeks. Generally the order will not expire until the court has a hearing.

At the hearing the court will hear from both sides and make a decision regarding whether a permanent restraining order is necessary and appropriate. A permanent order may not expire for years.

Some states limit how long a restraining order can last, but allow the court to issue a longer order depending on the circumstances. For example, in Texas, a domestic violence restraining order can only last for two years.

However the court can issue an order for longer if certain facts exist. Such as the abuser caused bodily injury or committed a felony against the victim or another member of the family or household. Either party can also ask the court for a hearing to modify, extend, or remove a restraining order.

Obtaining a Restraining Order

When requesting a restraining order, you will need to provide basic proof that you are being victimized by another party. Acceptable evidence can include physical evidence, witness testimony, and written statements. Actions that could result in the issuing of a restraining order include but are not limited to:

Restraining orders are generally obtained in connection with a trial, or through a direct request with a judge. An example of obtaining orders in connection with a trial would be a domestic violence trial. Such restraining orders often evolve into more permanent restraining orders. Directly requesting a restraining order with a judge most commonly occurs in conjunction with emergency restraining orders, as well as temporary restraining orders.

Additionally, some restraining orders can be obtained without the other party, or the offender, being present. These are referred to as ex parte orders, and are most often provisional orders that will be later changed into more lasting orders.

Whether an order can be modified depends on the type of restraining order that was initially issued. Most often, restraining order modifications involve turning a temporary order into a more permanent order. An example of this would be a temporary restraining order issued at the beginning of a trial, to protect the victim while the trial is still running. Once the trial is complete, the judge may issue a permanent order should they find the offender guilty of the crime in question.

A restraining order may be relaxed or lifted if the offender has demonstrated that they are rehabilitated, or have completed various reformation requirements. Such requirements could include parole or probation. No matter what type of modification is required, it must go through the court system and be approved by a judge. Should the order be violated, the violator may be charged with contempt of court or some other punishment.

Enforcing Restraining Orders

It is important to always have a copy of your restraining order with you at all times. Everyone protected by the order should have copies of the order. A copy should be kept in a safe place and on file with your local police department.

If the restraining order is violated, then the first step is to call the police. When the police arrive, show them the restraining order. It is a crime to disobey any court order and the police can arrest the abuser for violating the order.

There will be a court hearing to determine whether the order was violated, and if so, what the punishment will be. The court may impose civil and/or criminal penalties.

Violating a restraining order in place to protect a business or building may result in civil penalties, like a monetary fine. Violating a restraining order that protects a person or people from violence, stalking, or harassment can lead to civil and/or criminal penalties. The abuser may also face additional criminal charges if they committed a crime in addition to violating the restraining order.

Do Restraining Orders Apply in States Other than Where It Was Issued?

Today, restraining orders work across state lines. If someone has a valid restraining order in one state and then travels or moves to a new state, they do not need to get an entirely new order. The person protected by the order simply has to register the existing order with the court or police department in their new state and it will take effect immediately.

For example, if someone obtains a restraining order in Florida, and then moves to California, they need only bring a certified copy of the order to a California court, along with a registration form. Then, the Clerk of the Court in California will register the order with the state's computer system. That way, law enforcement agencies throughout the state are aware of its existence.

When trying to obtain a restraining order, it is always important to keep in mind that it is a two-stage process. In the first stage, the person seeking protection first obtains a temporary restraining order, which has effect usually for a very limited period of time, usually 10 to 30 days depending on the court and the state. The preliminary order or injunction is limited in time because it is issued without notice to the person who is subject to the order.

A court must have a hearing in which both parties can participate and argue either for or against issuance of the order. Only after such a hearing can the court issue a permanent restraining order. Keep in mind that courts can assign a period of time for a permanent order, so it may not last forever. In Texas, for example, a restraining order can only last for two years. So a protected person may need to renew a restraining order if it expires and the person believes that it is still necessary to have one.

Do Restraining Orders Remain Valid While Visiting Other States?

It can be challenging, if not impossible, to get a restraining order for someone in another state, or an out-of-state restraining order. The problem is that a court in one state may not have what is known as “personal jurisdiction” over a person who lives in another state. Basically this means that the court in one state has no legal justification for asserting its authority over a person who lives in another state. So a protected person may need to renew a restraining order if it expires and the person believes that it is still necessary to have one.

Some possible set of facts which may justify a court in asserting its authority over a person who resides in another state are as follows:

    • The abuser has a substantial connection to the state in which the person seeking the order lives because the abuser regularly travels to the state to visit the person or for some other reason. It could be that the abuser used to live in the state but recently left;
    • An act of abuse took place in the state in which the person seeking the order resides. Or, the abuser may have sent the person threatening emails, texts or made threatening phone calls to the person who seeks the order. So a judge could decide that the abuse “happened” in the state where the threatening communications were received.
  • If a person files their petition for a restraining order and has it served on the abuser while the abuser is in the state, then the court has jurisdiction over the abuser.

However, once a person has a valid restraining order in one state and then moves to a new state, they do not need to get an entirely new order. The restraining order issued by the court in the state where the protected person used to live still is effective in the state to which the protected person moves. The person simply has to register the existing order with the court or police department in their new state, so the police are aware of it and can enforce it if necessary.

In addition, the police can enter it into the state's statewide domestic violence computer system. Then law enforcement agencies throughout the state know of its existence and are better positioned to enforce it, if necessary.

Also, a valid restraining order is valid everywhere in the United States, and the named party will be protected by it wherever they may travel in the country. This is due to a section of the Constitution called the Full Faith and Credit Clause. If someone is concerned that they may not receive protection from a restraining order if they are traveling to another state, they should keep a copy of the restraining order with them to show to police in the event they should need to ask the police to enforce it. This would mean keeping it on your person or in your purse or backpack or the glove compartment of your car, ready at hand.

So, for example, if a person has a valid restraining order issued by a Florida court and the person moves to California, the person can have the restraining order entered into California's restraining order computer system. When the order has been entered into the California computer system, then law enforcement agents throughout the state can locate and read the order if the protected person should need to call on them for enforcement of it. A person can also register the order with their local courthouse. Once the court registers the order, the clerk of the court sends it to the state's computer system.

If the judge in the state where a person seeking protection cannot issue an order because the abuser lives in another state and the judge has no basis in fact for asserting jurisdiction over the abuser, the person seeking protection can file for an order in the court in the state and locality where the abuser lives. However, this might present other difficulties because the person seeking protection would have to file the petition for the order in person and attend court hearings, which could be challenging and costly if the state where the abuser lives is far away. Still, it is an option.

Can a Restraining Order Force Someone to Move?

In cases involving domestic violence, elder abuse or the abuse of a dependent adult, a court can order an abuser to move out of the place where the person who is protected by the order lives. So-called “residence exclusion” (or “kick-out” or “move-out”) orders tell the restrained person to move out of the residence where the protected person lives and to take only clothing and personal belongings.

For example, in the state of Mississippi, a restraining order can give the protected person possession of the home and order the abuser to leave it. The restraining order can give the protected person the right to return to their home if they left it in order to escape abuse (or for any other reason). The restraining order can require the abuser to provide the protected person with suitable, alternate housing, if the abuser has a duty to support the protected person and their children, and is the sole owner of the home that has been shared with the protected person. 

Contesting a Restraining Order

If you are served with a temporary restraining order it is important to comply with the order. You will have the opportunity to contest a permanent order at the hearing. Gather evidence related to the incident or incidents that led to the order. Contact witnesses that might have relevant information.

If the information used to obtain a restraining order against you is not accurate, then you will need to bring evidence to the hearing to show that the allegations are false.

If there are children involved, or a restraining order affects access to your home or your workplace, then the court might consider those factors and address them in the final restraining order. However, a restraining order can still be issued even if it means forcing someone to move out of their home or prevents them from going to work.

What Else Should I Know About Restraining Orders?

Most restraining orders are issued by a court as a result of the victimized party seeking protection. Importantly, restraining orders are not generally obtained through the prosecutor requesting it, or the judge issuing the order on their own. Thus, it is important that the victim first make a request.

However, in criminal cases the prosecution may request that the judge issues a no contact order, so as to protect the victims from the alleged perpetrators. In divorce cases, the judge may automatically issue an order that prevents either party from selling, destroying, or spending marital property until the divorce has been finalized. In fact, most courts have existing standing orders that protect marital assets.

Typically, restraining orders will contain a variety of restrictions customized to the needs of the specific situation. Some types of rules that a restraining order may put in place include:

  • Staying away from a certain party, residence, or location;
  • Ordering a party to have no contact with another party;
  • Ordering a party to cease their abuse of another party;
  • Granting a party the exclusive use of a residence or other piece of property; and/or

Other items such as ordering a party undergo drug counseling.

A restraining order is generally considered to be a civil action as opposed to a criminal action. This means that if a court issues a restraining order, and that order is violated, the violator will not automatically be reported to the police. The person who originally requested the order must first file a request with the court for a contempt hearing. At this hearing, the judge will decide how best to punish the violator if the violation is confirmed.

There are various advocacy groups, such as battered women's clinics, that can help a person complete restraining order forms at little to no cost. It is important to ensure that the restraining order does not conflict with or violate existing child custody or visitation orders. The court will need to modify such orders when a restraining order is issued.

How Can A Lawyer Help If I Am Dealing with a Restraining Order?

Restraining orders can have serious consequences and it is important to consult with an experienced attorney. If you think you need to obtain a restraining order, or have been served with a temporary restraining order, you should reach out to a criminal attorney or family law attorney.

You should have legal representation at the hearing where the court will decide whether or not to issue a permanent restraining order. An attorney can also advise you on other ways of protecting yourself, your family, and your assets.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.