How to File a Restraining Order: A Step-by-Step Legal Guide

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What you may recognize as a restraining order has several aliases: orders for protection, orders of protection, and protection from abuse orders, among others. There are even more specialized forms, including temporary restraining orders, preliminary protective orders (PPOs), domestic violence restraining orders (DVROs), and domestic violence protective orders (DVPOs). Regardless of the name, their purpose remains unified: ensuring your safety.

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Hopefully, you’ll never find yourself in a situation where one is necessary. However, if you’ve experienced or are facing abuse or harassment, obtaining a restraining order can alter—and potentially save—your life.

What Is a Restraining Order?

A restraining order is essentially a mandate from a civil court demanding that one individual refrain from harming or harassing another. While you can request a judge to penalize a violator for contempt of court, restraining orders are typically enforced by the police or other law enforcement entities. Violation of such an order is considered a criminal offense and can result in arrest, monetary fines, and imprisonment.

Restraining orders are versatile; for instance, they can prohibit your abuser from making any contact with you. They can enforce a specified distance between you and the abuser, including from your home or workplace, even if shared. These orders can compel the abuser to seek counseling, surrender any firearms, grant you temporary custody of children shared with the abuser, and if financially dependent on the abuser, mandate temporary spousal and child support.

Temporary restraining orders (TROs), or emergency protective orders (EPOs), are quick solutions available under urgent conditions, often lasting from a few days to several weeks, with some states allowing them to extend indefinitely until further court notice. Final restraining orders, following a detailed hearing, have a more extended duration, sometimes lasting several years.

How Do You Get a Restraining Order?

The process for securing a restraining order varies by state, yet courts strive to simplify it for victims. You’ll likely find useful resources and forms on your court’s website, and the court clerk’s office can guide you through the form submission.

Preparing the Petition

You start by drafting a petition for a restraining order. You either swear to the allegations within the petition or support your claims through a sworn affidavit (but beware—lying can lead to perjury charges). This sworn testimony forms the foundation for the order. After compiling your petition and any additional documents, the bundle is reviewed by a judge or referee, who then decides on the next steps.

Temporary Restraining

Order and Service Should the judge or referee find sufficient basis for a restraining order, they may issue a temporary one. If this order is granted without the other party’s knowledge, it’s known as an ex parte order.

By submitting another form, the court clerk forwards the temporary order to the abuser (the “respondent”) as per state law, and informs law enforcement to enable enforcement. A date for an initial court hearing is also scheduled.

The Initial Hearing

During this hearing, the judge or referee queries the respondent about their stance on the temporary order. If uncontested, the court validates your petition and issues a more prolonged restraining order. If contested, a hearing is scheduled where both parties can present evidence and witnesses.

The Evidential Hearing

At this hearing, you and the respondent both have the opportunity to present evidence and question each other’s witnesses.

Following the evidence presentation, the court either makes an immediate decision or takes additional time to consider before ruling. Judges typically aim to notify the petitioner of the decision promptly.

Winning the case means the court issues a restraining order, which must be served to the respondent. Additionally, law enforcement must receive a copy to enforce it. From then on, it’s crucial to report any violations to the police, who are then authorized to arrest the respondent and possibly initiate criminal proceedings. You can also request the court to find the respondent in contempt.

What Do You Need to Show to Get a Restraining Order?

The requirements for securing a restraining order can differ across states, but generally, you’ll need to demonstrate:

  • Specific incidents of abuse or harassment, like a sexual assault by a close partner,
  • The potential for further abusive acts or harassment.

In certain states, it’s also mandatory to prove:

  • Your relationship with the respondent fits specific criteria (e.g., you’re current or former intimate partners),
  • You’re justifiably afraid of imminent physical harm.

Crafting your petition with precision is crucial. Instead of vague accusations like “he abused me repeatedly,” detail specific incidents with dates, locations, and potential witnesses, like “on [specific date] at [specific place], in front of [witness names], he hit me and threatened my life.” Such detail is necessary.

Moreover, completeness is key. Any allegation not mentioned in your petition might be overlooked at the hearing.

While this process may seem daunting, most courts provide forms to guide you through including essential information (like contact details for both parties, any shared children, etc.) and narrating your experience.

Though filling out the form might seem straightforward, consulting with a family law or domestic violence attorney could be invaluable. Often, they might offer an initial consultation at a low cost or even for free, and given the high stakes, professional advice could be crucial.

What Evidence is Needed to Prove Your Case?

To substantiate your petition’s claims, you must present acceptable evidence to the court. Evidence can be direct, like a witness account of the respondent harming you, or circumstantial, requiring inference to establish a fact, such as deducing someone’s guilt from their presence and actions at a crime scene. Often, restraining order cases use both types of evidence, and a single piece (like a police report) can corroborate multiple elements.

The standard in most states is “preponderance of the evidence,” meaning your claims are more likely than not true. A few states require “clear and convincing evidence,” a stricter criterion.

Proving Harm To demonstrate harm, you could use:

  • Your own testimony or that of witnesses who saw the abuse,
  • A police report documenting the physical harm,
  • Medical records of treatment received for injuries,
  • Photographs of injuries inflicted by the respondent.

Proving Threat of Harm

Illustrating a threat of harm often proves simpler. Your account of verbal threats, threatening voicemails, or written threats (texts, emails, social media posts) directly show the judge the respondent’s menacing behavior.

Proving Reasonable Fear of Imminent Harm

In jurisdictions requiring evidence of fear, your testimony might suffice. Supplemental circumstantial evidence, such as precautions you’ve taken for safety, or a police report indicating a legitimate fear (implying police validation of your concerns), strengthens your case.

While these guidelines offer a starting point, navigating the process with the assistance of a lawyer can provide significant advantages. A legal expert can help draft your petition accurately and, if needed, represent you in court. Considering what’s at stake, consulting a lawyer is a prudent step. Stay safe and best of luck!

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