Restraining Order

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A restraining order is issued by a court to protect a person from physical abuse, threats, or harassment by another specific person. A restraining order is obtained after the court determines that the applicant has a reasonable belief that he or she is in imminent danger, or may be in danger due to the actions of another. In some jurisdictions, restraining orders are referred to as “protective orders,” and the person to whom it is issued is referred to as the “protected person.” The court order specifies the rules of the protective order, and clearly states that a violation may result in arrest. To explore this concept, consider the following restraining order definition.

Definition of Restraining Order

Noun

  1. A court order issued to prohibit an individual from causing harm or fear to another person by ordering the abuser to have no contact with, or to stay away from, the victim.

Origin

1875 – 1880

What is a Restraining Order?

A restraining order is a legal order issued by a court to protect a victim from any type of abuse, threats, or harassment. A restraining order is a legally binding order of the court, enforceable by law enforcement officials as well as the court. Such protective orders are issued, not only to protect victims from violence, but from other forms of abuse, nuisance, and stalking. The specific provisions of a restraining order vary by jurisdiction, as well as by the specifics of the case.

Types of Restraining Order

In most jurisdictions, there are different types of restraining order. Which type is issued depends on the situation. In states that have only one type of restraining order, the specifics of protection are detailed in the body of the order itself. The most common types of restraining order include:

Emergency Protective Order

Also referred to as an “EPO,” an emergency protective order becomes effective immediately when police encounter a domestic violence situation in which two people live together. The order forces the abuse to leave the premise and it allows law enforcement to remove any guns from the scene. An EPO expires in a very short time, often three to seven days, giving the victim time to apply with the court for a permanent restraining order… In many states, emergency protective orders are issued by the police instances of domestic violence.

Temporary Restraining Order

An application for restraining order, filed with the court, provides the victim with temporary protection until a hearing can be held. A temporary restraining order, also referred to as a “TRO,” only becomes effective once an application for a permanent restraining order has been filed with the court, and served on the offender. A temporary restraining order offers the victim the same level of protection and a long-term order, but it only requires the victim to provide the court with proof that they are in imminent danger.

Domestic Violence Restraining Order

Also referred to as a “DVRO,” a domestic violence restraining order is issued in situations in which the perpetrator is a spouse, domestic partner, someone with whom the victim shares a child, other relative, or roommate.

Workplace Violence Restraining Order

This restraining order protects an individual from harassment, threats, and violence in the work place, or from a co-worker.

Civil Harassment Restraining Order

This type of restraining order is available to individuals in any situation in which they are being harassed by someone, being stalked, or receiving threats of violence. Harassment includes such acts as:

  • Sending or leaving threatening emails, letters, or notes
  • Repeated telephone calls and voicemails
  • Frequently following someone
  • Slashing car tires, or causing other vehicle damage
  • Blackmail

Permanent Restraining Order

While a temporary restraining order automatically goes into effect when an application for a restraining order is filed, a hearing is required for the court to order a permanent restraining order, which is not literally permanent, but ordered for a specified period of time, often one, three, or five years.

How to Get a Restraining Order

While many people hire an attorney to take care of preparing and filing restraining order documents, the application for restraining order is made to be easy for a layperson to complete and file on their own. The documents needed to start the restraining order process are available from the local court. A hearing will be scheduled at the same time the application is filed, the date and time placed on the application by the court clerk.

The application and temporary restraining order must be personally served on the accused. This may be done by a process server, a sheriff, a constable, or any individual over the age of majority who has no stake in the case. A sworn statement must be completed and signed by the person serving the documents, stating the date, time, and manner the documents were served. This is referred to as a “proof of service,” and must be filed with the court. In the event the documents are not properly served, or the proof of service is not filed, the hearing may not take place.

At the Hearing

At the hearing, the victim will have an opportunity to explain to the judge why a restraining order is needed. Evidence, such as phone records, photographs, journals, and video recordings may be presented, and witnesses may testify to the violence, threat of violence, intimidation, stalking, or whatever the issue may be.

The accused person will be given an opportunity to disprove the accusations, as well as to show why an order to stay away from the victim would be a hardship. After all evidence and testimony have been presented, the judge will make a decision. If the restraining order is approved, the details will be spelled out very specifically in the written order, and a copy given to both parties.

Common Provisions of a Restraining Order

Each state has specific statues regarding the things to be included in a restraining order, many of which are specific to the circumstances of the case. The most common provisions of a restraining order include:

  • No contact – this provision prohibits the abuser from contacting the victim in any way, including in person, phone calls, texts, email, or even postal mail.
  • Peaceful contact – this provision permits the abuser limited communication for specified purposes only. This is usually to facilitate peaceful care and transfer of the parties’ children.
  • Stay away – this provision orders the abuser to maintain a specified amount of distance between himself and the victim at all times. This is commonly 100 yards away, and applies to the victim’s person, his or her vehicle, home, school, and work. Other locations the abuser must stay away from will be specified in the order.
  • Move out – this provision requires the abuse to permanently move out of the home.
  • No firearms – this is a provision common to all restraining orders, and requires the offender to surrender any and all firearms. Firearms may be surrendered to law enforcement to be held until the restraining order expires or has been terminated by the court, or they may be sold. Either way, the abuser must provide a receipt documenting the surrender to the court.
  • Counseling – in some circumstances, the court may order the abuser to take part in some form of counseling, anger management, or substance abuse program.

Enforcement of a Restraining Order

The purpose of a restraining order is, not only to protect the victim from harm, but to help ensure the victim does not have to live in fear. Because of this, restraining orders are strictly enforced by both law enforcement and the courts. Violating a restraining order may result in arrest, and the violation may result contempt of court charges, or in misdemeanor or felony criminal charges, depending on the seriousness of the violation. To further increase the effect of a restraining order in protecting the victim, the Full Faith and Credit Clause of the U.S. Constitution requires all states to recognize and enforce protective orders issued by another state.

Child Visitation When There is a Restraining Order

In many cases of domestic violence, the parties’ children get caught in the crossfire. A domestic violence restraining order will be tailored to protect the victim spouse, as well as the children living in the home. This may include extending the no contact order to include the children, at least temporarily.

In cases in which there is no abuse or violence directed toward the children, the perpetrator may still be allowed to have scheduled visitation with the children. Exchange of the children when there is a no contact order with a parent can be complicated. Depending on the circumstances, the court may allow peaceful exchange of the children at a location chosen by the parties. The court may also order supervised exchange, in which the drop off and pick up takes place with another adult family member present, such as a grandparent, or it may take place at an agency that supervises visitation and child exchange.

Frivolous Restraining Orders

While the courts hear legitimate cases of abuse every day, and issue restraining orders when they are reasonably needed, the courts frown on people applying for restraining orders simply because they are angry with someone, or want to cause trouble for them. In a zealous attempt to protect victims of abuse, most jurisdictions provide at least a temporary restraining order until a hearing on the matter can be held. In some cases, this policy is seen to ignore the rights of the accused.

For example, in the 2005 case of Colleen Nestler v David Letterman, the woman filed for a restraining order against the late night talk host, claiming that he was using code words during his shows to try to get her to marry him. Nestler asked that Letterman be ordered to stay away from her, to not “think” of her, and to “release [her] from his mental harassment and hammering.” The judge issued a temporary restraining order, ordering Letterman to stay nine yards away from Nestler.

During the hearing held a month later, Letterman’s attorneys pointed out that the woman was also claiming that other celebrities, namely Kelsey Grammer and Regis Philbin, are colluding with Letterman in this so-called harassment. They also pointed out, in the face of the woman’s claim that Letterman’s use of code words and facial expressions during his shows caused her to lose sleep, have mental problems, and go bankrupt, that she could simply use the “off button” on her TV to end the problem. In the end, the judge dismissed the restraining order, but some argue that the damage, if any, was done to Letterman’s reputation.

Related Legal Terms and Issues

  • Authority – The right or power to make decisions, to give orders, or to control something or someone.
  • Criminal Charge – A formal accusation by a prosecuting authority that an individual has committed a crime.
  • Hearing — A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Victim – A person who is injured, killed, or otherwise harmed as a result of a criminal act, accident, or other event.