Restraining Orders Under Domestic Violence Laws
Domestic violence laws vary significantly by state. If you are involved in a restraining order case, either as the person seeking protection or as the person being restrained, you should consult with a lawyer in your area immediately.
What Is a Domestic Violence Restraining Order?
A DVRO is a civil court order signed by a judge that is designed to prevent a person from abusing, harassing, threatening, or contacting another person. It is not a criminal conviction.
Who Can Get a DVRO?
To qualify for a domestic violence restraining order, the person seeking protection (the "petitioner" or "protected person") must have a specific relationship with the person they want protection from (the "respondent" or "restrained person"). These relationships typically include:
- Spouse or former spouse
- Partner in a registered domestic partnership
- Someone you date or used to date
- Someone you live with or used to live with (cohabitants)
- A person with whom you have a child
- Close relatives (parent, child, sibling, grandparent)
How Can You Get a Restraining Order?
The process for obtaining a DVRO typically involves several stages, starting with immediate protection.
The Emergency Protective Order (EPO)
In situations of immediate danger, especially after a call to 911, law enforcement can contact a judge (at any time, day or night) to request an Emergency Protective Order, or EPO. If granted, the EPO goes into effect immediately and typically lasts for about 5-7 days. This serves as a crucial bridge, providing temporary safety until you can get to a courthouse to file for a Temporary Restraining Order.
The Temporary Restraining Order (TRO)
- Filing Papers: The petitioner files paperwork with the court detailing the alleged abuse and specifying the protections they are seeking. In most jurisdictions, there is no filing fee for a domestic violence restraining order, or you can ask the court to waive the fees.
- Ex Parte Hearing: The petitioner goes before a judge for an ex parte hearing. "Ex parte" means the respondent is not present and has not yet been notified.
- Standard of Proof: At this stage, the petitioner often must show the judge "reasonable proof" or a "good cause belief" that abuse has occurred and that they would suffer irreparable harm if the order is not granted immediately.
- Outcome: If the judge is convinced, they will issue a Temporary Restraining Order (TRO). This order is valid for a short period, typically 2-3 weeks, until a full court hearing can be held. The TRO must be personally "served" (legally delivered) to the respondent by a third party (often law enforcement or a professional process server).
The Full Court Hearing for the Final Order
- The Hearing: This is a formal court hearing where both the petitioner and the respondent have the right to be present, be represented by an attorney, present evidence, call witnesses, and cross-examine the other party.
- Standard of Proof: The legal standard at this hearing is higher. The petitioner usually must prove their case by a "preponderance of the evidence." This means it is "more likely than not" (i.e., >50% chance) that the abuse occurred.
- The Final Order: If the judge finds that the standard of proof has been met, they will issue a final restraining order. This order has a fixed duration, typically ranging from 1-5 years, and can be renewed before it expires.
What Evidence Can Show Abuse?
A person seeking a DVRO must provide specific facts and evidence of past abuse. Useful evidence includes:
- Photos or videos of injuries or property damage.
- Threatening texts, emails, voicemails, or social media messages.
- Police reports (including any reports related to an EPO) or medical records.
- Testimony from witnesses who saw or heard the abuse.
- A detailed, chronological declaration of the events.
Meanwhile, the respondent may gather their own evidence to challenge the petitioner's claims. This could include texts, emails, or witnesses that contradict their story or show that the respondent is not a threat.
What Does a DVRO Do?
A DVRO can include several different provisions, such as:
- No-Contact Order: Prohibits any form of contact (in person, phone, text, email, social media, third party).
- Stay-Away Order: Requires the respondent to stay a certain distance away from the petitioner, their home, their workplace, their children's school, and their vehicle.
- Move-Out Order: Can force the respondent to move out of a shared residence, even if their name is on the lease or title.
- Child Custody and Visitation: Can grant the petitioner temporary legal and physical custody of minor children and specify (often supervised) visitation for the respondent.
If the order is granted, the respondent likely will be prohibited from owning, possessing, or purchasing firearms.
What Happens If a Restraining Order Is Violated?
Here's what you should know about the consequences of violating a restraining order:
- It's a Crime: While obtaining the DVRO is a civil matter, violating it is a criminal offense.
- Immediate Arrest: If the petitioner calls the police and shows them a valid order that you have violated (e.g., you came within the stay-away distance or sent a text), you can be arrested immediately.
- Penalties: A conviction for violating a restraining order can result in fines, probation, mandatory counseling, and jail time.
- "No Innocent Contact": It does not matter why the respondent made contact. Even sending a text that says "I'm sorry" is a violation. Furthermore, if the petitioner contacts the respondent, the respondent can still be found in violation for responding. The order is on the respondent, not the petitioner.
What Should You Do Next?
- If you are a victim of domestic violence: Contact the National Domestic Violence Hotline at 1-800-799-7233 or visit their website. They can provide resources, safety planning, and connections to local legal aid.
- If you have been served with a restraining order: Take it seriously and contact a defense attorney immediately. Do not violate the temporary order in any way. Gather all evidence related to the case and prepare for your hearing.
