Restraining orders are designed to help protect people in domestic situations that have become violent or unsafe. We’re here to help you obtain a restraining order, contest an order someone put against you or defend against allegations that you violated a restraining order.
Obtaining a Restraining Order
The person applying for the restraining order is the “Petitioner,” while the person being restrained is the “Respondent.” In order to obtain a restraining order, the Petitioner must go to the courthouse in person to apply. Before the judge will grant a restraining order, the judge must first find that there is a domestic relationship (such as marriage, sexual relationship, or cohabitation) and must find that, within the last 180 days (6 months), the Respondent either: 1) Caused or attempted to cause bodily injury to the Petitioner, 2) Placed the Petitioner in fear of bodily injury; or 3) Caused the Petitioner to engage in involuntary sexual acts.
The process of getting a restraining order can be complicated and is different in every county. There are generally strict times by which the applications must be submitted in order for the judge to hear the case on the same day. If the petition is filled out properly and the judge can make the necessary findings based just on what is written, then the judge will sign it without needing to hold an official hearing or questioning the Petitioner. If the petition is not written clearly, however, then the court will ask further questions to figure out whether there is enough proof to issue the restraining order. We have experience in writing petitions that clearly state the information required to get the order without a hearing. Call us today if you would like help in applying for a restraining order.
Restraining orders are very serious. If a person is truly in danger, then a restraining order can help to save that person’s life. On the other hand, restraining orders are difficult to have removed once granted, so the decision to apply for a restraining order should not be taken lightly. The Respondent will have the opportunity to contest (or fight) the restraining order within 30 days after being served. Call us to discuss how we can help you in defending a restraining order.
Effect of Restraining Order
Once granted, a restraining order will automatically last for one (1) year from the date the judge signs the order unless it is dismissed by written court order. Restraining orders may be renewed every year if the Petitioner can show the court that the danger continues. The restraining order cannot be enforced until the Respondent has been personally served with a copy of the order by a third party. If you are served with a restraining order it is extremely important to thoroughly read the entire order to determine what restrictions are placed on you. We are happy to review a restraining order with you to help you understand exactly what is expected of you to avoid violating the order.
Restraining orders, in their simplest forms, are court orders stating that the Respondent may not contact the Petitioner. Typically this includes a restriction from contacting the Petitioner directly (i.e., speaking to them in person or over the phone) or indirectly (i.e., having someone else give a message or leaving a note). Often the order restrains the Respondent from coming within a certain area of the Petitioner (such as 150 feet) or from going to the Petitioner’s residence. Many restraining orders also prohibit the Respondent from possessing any firearms. Again, it is important to read a restraining order carefully to determine what the order says. There may be exceptions to the order, such as allowing third-party contact to arrange visitation.
If the Petitioner and Respondent share children, then child custody and visitation will be part of a restraining order. The order may restrain the Respondent from contacting the children at all, or may allow visitation. It is important to read and understand what the custody portion says so that no violations occur. Call us to discuss child custody and visitation issues within restraining orders with you, as well as to determine what is currently ordered if a restraining order says something different from a previous custody order.
Contesting a Restraining Order
When a Respondent is served with the restraining order, included in the paperwork will be instructions for contesting (fighting) the order. If you wish to contest a restraining order, paperwork must be filed with the court within 30 days of being served. We would be happy to put our experience to work for you to help contest a restraining order.
A restraining order can be contested in whole or in part. Sometimes the Respondent feels that the entire basis for the restraining order is untrue or misleading and asks that the whole order be vacated. Other times the Respondent decides not to fight the order, but does ask that certain portions of the order be vacated or modified. Examples would be child visitation issues, whether firearms should be prohibited, or modifications that allow for the Respondent to follow the order (such as allowing a Respondent closer than 150 feet because the only entry to their home is only 140 feet away from Petitioner’s residence).
Since a restraining order is initially granted based purely on the statements of the Petitioner, a contested hearing is the first chance for the Respondent to offer their side of the story. Sometimes this is done via other witnesses, but often it comes down to a “he said, she said” situation. It’s important to have a plan for how to fight the order before this hearing in order to be successful. If a Respondent loses then the restraining order continues in effect. Call us to discuss how we can help to fight a restraining order.
A huge consequence of losing a case after contesting a restraining order is that the Respondent is then prohibited by federal law from possessing any firearms. This is true whether the Petitioner asked that there be no guns or not. Losing a contested restraining order hearing is a serious matter. We are here to help you, call us today.
Violation of Restraining Order
Getting charged with violation of restraining order is a serious matter. While it is only consider “quasi-criminal,” it can carry up to 6 months of jail time per count, as well as probation and fines. There are many ways to violate a restraining order, and often a single act can violate the order multiple times and lead to several different counts. For example, the simple act of knocking on the Petitioner’s door could easily lead to three different counts of violation of restraining order: one for being too close to the residence, one for being too close to the petitioner, and one for contacting the petitioner directly when he or she opens the door. Violation cases can quickly become very serious, as the above scenario would then carry a maximum of a year and a half in jail!
Violations are handled similarly to crimes. Respondents are usually kept in custody while waiting for their hearing unless they are able to post bail. We have successfully argued to the court for early release pending trial without posting bail. Call today if someone you know if being held in jail pending a violation hearing.
The Respondent will have the opportunity to plead guilty to the violations, or can ask for a trial on the matter. The trial will be similar to a criminal trial, though it will be in front of a judge instead of a jury. Violation trials can be very difficult given that often the only evidence is testimony from the Petitioner and Respondent themselves. We have handled many violation trials; call us today to discuss your pending charges.
If found guilty of violation of restraining order, you could face jail time and also probation. While on probation, you could be ordered to pay hefty fines, not drink, submit to random UA’s, undergo domestic violence treatment, undergo drug treatment, undergo mental health treatment, or face several other unpleasant conditions. Even if a Respondent does not plan to fight a violation charge, it’s important to have a good argument as to why the judge should not order a harsh sentence. We are happy to discuss this with you and to help you get the best sentence possible.