Domestic Violence: Orders of Protection and Restraining Orders
Various protection orders are available in civil and criminal law for victims of domestic violence. These protection orders intend to keep the victim safe and restrain the offending person's abusive behavior. The names of these orders, the details of their provisions, and where to file them can vary state to state.
This article will discuss in detail the types of protection orders pertaining to victims of domestic violence. You will also learn how such protection or restraining orders are enforced in a court case and what happens when a person violates the order.
Protection or Restraining Orders
Courts issue protection or restraining orders to ensure the safety of individuals from those who harm them. In this discussion we shall use the terms protection order and restraining order interchangeably; however, in some states, the term "restraining order" only applies to orders related to an already existing case such as a divorce to restrain a party from disposing of assets while the case is pending. In some states, protection orders are called protection from abuse (PFA) orders.
Protection or restraining orders are typically issued by a court for domestic abuse, sexual assault and harassment, stalking, and other forms of domestic violence. Most states today provide for a victim to request a protection order in a pending criminal case or in a separate civil action whether a crime has been charged or not. A victim may request the issuance of a restraining order and the court may find and order the offending person to refrain from or perform any of the following acts:
- Stay away from the victim or other family members
- Stop any forms of communication, even through another person
- Temporarily pay child support
- Continue making payments of the mortgage on a co-owned home or continue paying rent
- Turn over firearms and any ammunition to the police
- Conduct regular drug testing and attend counseling for drug and alcohol use or domestic violence
- Stay away from the children and their school or visit the children only under supervision
- Do other acts that are designed to protect the victim
The judge who issues the protection or restraining order will ensure it meets the victim's needs.
Types of Protective Orders
A protection or restraining order is a legally binding directive issued by a court to protect a person from abuse. It is enforceable by law enforcement officials or police officers. It is normally brought as a separate civil court action. There are two types of protection or restraining orders in this area: temporary and permanent (extended).
Temporary Protection or Restraining Order
The purpose of a Temporary Protection or Restraining Order is to give the victim of abuse and their household members immediate protection from an abuser. The petition will usually be submitted to a judge on the same day it is filed and will be filed ex parte, or with only one party present. The judge may request testimony from the victim as needed. If the judge decides that an immediate danger is present based on the present evidence, a temporary protection order will be issued and served on the offending party.
Once the court serves the offending party with a copy of the order, it becomes effective. However, the order does not last long; in most cases, it only is in effect for several days. Both parties are then notified to attend a full hearing on the request. Both parties can testify at the full hearing. At the full hearing, the court can maintain, change, or terminate the order.
Permanent Protection or Restraining Order
At the full hearing, when the victim still feels threatened and the court finds the offending party committed domestic violence, the court may modify the temporary restraining order by issuing a permanent protection order. This type of restraining order is valid for a longer period of time.
This court order can also provide provisions other than protection from abuse. In most cases where the parties have children in common, the court will address exclusive use of a residence and child custody and parenting time. The court will set a longer period of time for the order such as one or more years.
As state procedures vary, it is always best to seek legal advice to learn more about the types of protection orders based on your state law. Furthermore, definitions of domestic violence or abuse may differ somewhat depending on your state.
Emergency or Criminal Protection Orders
An Emergency Protective Order or Criminal Protective Order is a directive issued by a court often upon the request of a police officer or other law enforcement officers. The request typically occurs when police respond to emergency situations such as domestic violence cases. And the law enforcement officer responding to the scene can make the request.
In this instance, the court can also issue an ex parte protective order without a full court hearing.
An Emergency or Criminal Protection Order may only be valid for a short amount of time. In most cases, the protection order may be heard or modified at the time of the criminal case arraignment. At such a hearing, the victim may seek that the order of protection extend for the duration of the criminal case. When there are reasonable grounds, courts will often issue these orders in any of the following cases:
- Domestic violence
- Child abuse
- Child abduction
- Elder or dependent adult abuse
- Gun violence
Violation of Protection Orders
When an offending party commits a protection order violation, it may result in subsequent criminal charges or civil actions. Depending on the circumstances, the violation may be pursued as:
- A felony offense
- A misdemeanor offense
- A contempt of court offense
Felony charges are typically reserved for either repeat or serious violations. A person who violates the order can also be charged with contempt of court. Such charges may also result in revocation of bail. If the violation occurs during a new domestic violence offense, additional criminal charges may be filed.
Some states may not support the state pursuing both contempt of court and a violation of protection order charge based on concerns of subjecting the offending party to double jeopardy. In most states, violation of a protection order can automatically result in arrest. This is usually the case if the person requesting the protection order is in immediate danger.
Enforcing Orders of Protection in Different States
Survivors of abuse and their family members often seek refuge by moving away from the abuser. They may even move out of the state where the abuse occurred to stay away from their former spouse or abuser.
However, every state is required to enforce the Full Faith & Credit Clause of the Constitution and the federal laws. The domestic violence restraining order will be valid not only in the state where it was issued but also where the victim resides.
Therefore, if an abuser stalks a victim in their new state of residence, the police officers must uphold the protection order. However, the court also assesses each side of the story and other factors related to the case.
Standard Provisions of a Protection or Restraining Order
Each state has certain provisions for enforcing restraining orders and protection orders. However, there are standard provisions that apply in most states, such as the following:
- No contact: Prohibits a person from contacting the victim or any family member involved.
- Peaceful contact: Allows communication with the victim or minor children only for specified purses. The family court usually enumerates instances when communication is allowed. It is often done when facilitating the transfer of personal properties or temporary custody of children.
- Stay away: Requires a person to keep a specified distance away from the victim at all times. The common number is 100 yards away. It applies not only to the victim's person, but as well as their home, work, or school. The respondent in this case might also be asked to stay away from certain locations specified in the order.
- Move out: Mandates a person to move out of the home permanently.
- No firearms: Requires a person to surrender any and all firearms. Police officers or law enforcement officials may also confiscate the firearms. It will be held until the restraining order expires or the court terminates it.
- Counseling: Asks a person to join an anger management or substance abuse program and counseling.
Seek Legal Help
If you would like to learn more about family violence protective order, call an attorney near you. A family law attorney can help you understand your rights and provide legal services on various topics. They can also assist you with your questions, particularly when it comes to the temporary custody of your minor children and handling of personal property.
No one should have to live with domestic violence. However, if your situation is dangerous, contact the domestic violence hotline immediately or call 911.
Can I Solve This on My Own or Do I Need an Attorney?
- Victims of domestic violence can press charges against their abuser
- The ability or requirements to press charges varies in each state
- Contacting a family law attorney or advocacy groups for advice is essential
Some attorneys represent victims of domestic violence. Others defend the rights of those accused of domestic abuse or other related crimes. Many attorneys offer free consultations.