Domestic violence is a serious problem in the United States that has been on the rise during the COVID-19 pandemic. Domestic violence victims are often unaware of the legal protections available to them, including restraining orders. Stay with us and learn everything you need to know about a restraining order, from the definition to the application process, cost, and effectiveness.
A restraining order, also called a protective order or protection from abuse order (abbreviated PFA), is a court-issued document that instructs an abuser to stop engaging in abusive behavior and not have any contact with the victim. This court order can provide vital protection for victims of domestic violence, including physical, emotional, and financial abuse.
The person who files the protective order is called the protected person (or persons, in the case of a family), while the person against whom the order is filed is called the restrained person.
According to restraining order laws, victims can be protected against various types of abuse. In general, we can categorize the orders into three different sections:
- Personal conduct orders prevent restrained persons from conducting specific acts against named protected persons. The acts include harassment, stalking, cyberstalking, threats, assault, battery, sexual assault, destruction of property, economic abuse, and contacting, calling, or sending any messages (including email).
- Stay-away orders order abusers to remain a specified distance away from victims, their home, school, or workplace.
- Residence exclusion orders are also called “kick-out” or “move-out” orders, and they require the abuser to move out of the home shared with the victim until the court hearing.
How To Get a Restraining Order
The process of obtaining a restraining order may vary slightly from state to state, but there are generally three steps involved:
1. Filing a Petition With the Court
If you are a victim, you can file a complaint in the county where you live, where your abuser lives, or where the violence occurred. You'll need an identification document, such as a driver’s license or a picture ID.
Ideally, you should be able to provide information about the alleged abuser, such as a description, the address, phone numbers, and plate numbers, as well as previous restraining orders, drug abuse history, or gun ownership records.
2. Filling Out Forms
Filing a restraining order starts with filling out the forms. You will find all the necessary forms at the courthouse or state police stations, or you can download them online. The forms will ask you to describe the abuse in detail, including when and where the alleged violence occurred, and name any witnesses to the abuse.
If you cannot appear in court due to emergency circumstances, the court can approve a temporary restraining order based on your written complaint. A copy of the petition, the TRO, and notice of the final hearing will be served to the abuser by the sheriff.
There are no costs associated with filing for a protective order. However, if the judge rejects your request, you may be asked to pay the respondent’s court fees, including compensation for their attorney, if they had one.
3. The Court Hearing
Once you fulfill all the restraining order requirements and file the necessary paperwork, a court hearing will be scheduled. At the hearing, both you and the alleged abuser will have a chance to present your side of the story, any evidence you may have, and witnesses who can testify on your behalf. You can hire a lawyer to represent you or prepare for your court date yourself.
The burden of proof is on the person requesting the restraining order. The standard of proof is generally lower in domestic violence cases than in other types of civil or criminal cases.
What proof do you need for a restraining order? Usually, the victim should provide evidence of past abuse, such as police reports, medical records, or witnesses to the abuse, to obtain a domestic violence restraining order.
After hearing both sides, the judge will decide whether or not to issue a permanent restraining order, which might last up to several years or sometimes indefinitely. If a permanent order ceases to apply, the victim can apply for an extension.
Types of Restraining Orders
There are four types of restraining orders that can be issued by a court:
- A domestic violence PFA is the most common type of restraining order, issued when there is a relationship between the abuser and the victim. Through this type of order, the victim can be protected against a current or former spouse, co-parent to their children, or someone they’re dating or have dated in the past. According to statistics, 23.5% of marriages in the US end in divorce due to domestic violence.
- A civil harassment restraining order is issued when there is no relationship between the abuser and victim to protect the victim against someone such as a neighbor, co-worker, or family member.
- An elder or dependent adult abuse order is issued to protect older people and dependent adults from abuse, such as physical or emotional abuse, neglect, or financial exploitation.
- A workplace violence PFA is issued if you’re being harassed or abused at work. Only employers can request this type of restraining order; employees can only ask for a civil harassment restraining order.
Enforcing a Restraining Order
The previous sections of this article answer the question, “How does a restraining order work?” But knowing the answer to that question is only part of the puzzle – you also need to understand how a restraining order is enforced, as in some cases, the abuser may violate the terms of the restraining order.
If this happens, you should immediately call the police, as the abuser can be arrested and charged with indirect criminal contempt. In some states, they might be charged with a misdemeanor or felony. Other than jail, the abuser might be placed on probation or have to pay a fine.
It’s also important to keep a copy of your PFA with you at all times and to have it readily available should you need to call the police. A restraining order lawyer can help you understand the process of getting a protective order and how to enforce it if the abuser violates the terms. If you cannot afford a lawyer, you can use legal consultation services and get professional advice.
All restraining orders are valid across the United States, so your order will still be in effect even if you move to a different state.
If you are a victim of domestic violence or some other form of abuse, a restraining order may be one way to protect yourself. Restraining orders are civil orders that can provide some measure of protection from abusers, but they are not always effective and should not be seen as a guarantee of safety.
Knowing how to file a restraining order and enforce it can help keep yourself and your family safe. If you get approved for a PFA, the abuser will be notified and will have to stay a certain distance away from you for the period specified in the order.
You should always consult an experienced legal professional to see if having such an order is right for your situation, to understand how they work and what you can do if the abuser violates the terms of the order.