Domestic Violence: Orders of Protection and Restraining Orders

Survivors of domestic violence have several civil and criminal protection or restraining order options to protect themselves from further abuse. With an order of protection or restraining order in place, for example, your abuser can be arrested for violating any of the terms of the order. This makes it easier for you to protect yourself from your abuser. This article explains the various types of protection available to a victim of domestic violence.

More specifically, the following domestic violence orders of protection will be discussed:

• Emergency Protection Orders
• Protection Orders
• Restraining Orders

This article will also cover what happens when domestic violence orders are violated and how these orders are enforced in states other than the one in which the order was issued.

Emergency Protection Orders

In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required (or requested) to leave the home. Often, this person is the abuser, although the police can be mistaken about who the aggressor is. In about one-third of states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident.

In some states such as Texas, California, and others, the police can give the victim an Emergency Protection Order (EPO). This is a short-term protection order typically given to a victim by the police or magistrate when an abuser is arrested for domestic violence. An EPO generally lasts for a short period of time, such as three or seven days. During this time, victims request a longer-term protection order.

Orders of Protection

All 50 states and the District of Columbia have statutes for some form of order of protection. However, the name of this order tends to be different from one state to the next. For example, Illinois, New York, and Texas, call them protection orders or orders of protection. On the other hand, California calls it a restraining order, while Florida calls it an injunction for protection against domestic violence.

A protection order is different from an EPO because it's for a longer period of time. It typically lasts for a duration of one to five years. A victim can renew the protection order if the victim still feels threatened by their abuser. Under extreme circumstances, the order can remain in effect for a lifetime.

A protection order may include the following provisions:

• No Contact Provision: Prohibiting the abuser from calling, texting, emailing, stalking, attacking, hitting, or disturbing the victim
• Peaceful Contact Provision: Permitting the abuser to peacefully communicate with the victim for specified reasons, such as a child's healthcare or visitation rights
• Stay Away Provision: Ordering the abuser to stay at least a certain number of yards or feet (typically 100 to 300 feet) away from the victim as well as possibly the victim's home, job, school, and/or car
• Move Out Provision: Requiring the abuser to move out of a home shared with the victim
• Firearms Provision: Requiring the abuser to surrender any guns they possess and/or prohibiting the abuser from purchasing a firearm
• Counseling Provision: Ordering the abuser to attend counseling, such as batterer's intervention or anger management

Protection orders may include children, other family members, roommates, or current romantic partners of the victim. This means the same no contact and stay away rules apply to the other listed individuals, even if the direct harm was to the victim. Some states even allow pets to be protected by the same order, given that abusers may also harm pets to torment their victims.

As part of the protection order, some states include visitation and custody for children of the victim and abuser. These are generally temporary and can be modified by divorce or other future family court orders.

In order to obtain a protection order, you need to file the required legal papers with your local court. You will need to appear in court to present evidence before a judge concerning why you need the order. Your abuser will be served notice to appear in court to respond to your request for an order of protection. Often, the police will serve your abuser with this notice.

Restraining Orders

A restraining order is an order requiring parties to a lawsuit to do or not do certain things. It may be part of a family law case, such as a divorce or other civil case. Although this isn't the same as a "domestic violence restraining order," which is summarized above, domestic violence can be a factor in the underlying family law case.

Restraining orders may be requested "ex parte," meaning that one party asks the court to do something without telling the other party. If the restraining order is granted ex parte, then the other party is later permitted a hearing to present their side of the story. This is often the process for protection orders, as well. Since restraining orders also vary by state, it's important to consult with an attorney familiar with the laws where you live. If a criminal case is pending, the district attorney may request a protection order for the victim of the crime. A judge may request this, as well, if a criminal case is pending.

Violation of Protection Orders

Violation of a protection order can be treated in one of three ways: a felony; a misdemeanor; or contempt of court. Felony charges are typically reserved for either repeat or serious violations. Sometimes, violations are considered both contempt of court and a new domestic violence charge. An exception to this is California, where an abuser cannot face this set of consequences. In that state, it has been ruled that this amounts to double jeopardy for the defendant. Nevertheless, in many states, police policy is to arrest violators of these orders automatically.

Enforcing Orders of Protection in Different States

In seeking refuge from abuse, a survivor will often move far from the place where they were abused. They may even move out of the state where the abuse occurred. The Full Faith & Credit Clause of the Constitution and federal law require valid protection orders to be enforced across every state, not just in the state where the order was issued. Therefore, if an abuser stalks a victim in their new state of residency the police must uphold the protection order from the state that issued the order.

Get Professional Legal Help with Domestic Violence Orders of Protection

No one should have to live with domestic violence. If your situation is imminently dangerous for you or your children, contact law enforcement right away. If you're considering a domestic violence restraining order, it's a good idea to consult with a domestic violence attorney who can answer any questions, file the necessary paperwork on your behalf, and advocate for you in court.