Temporary and Final Restraining Order Procedure and Practice
If you are a victim of Domestic Violence, or you have had a restraining order entered against you, this guide will provide information as to the process of obtaining a temporary restraining order and the procedure of a final restraining order hearing.
What is a restraining order?
A restraining order is an order issued by the court which prevents contact between the parties or through a third party. The intent is that this order will protect a victim of domestic violence from further abuse.
Who Can Obtain a Temporary or Final Restraining Order?
There must be proven to be a certain relationship to between the parties. For example, your abuser must be: 1) Your current or former spouse; 2) Someone who currently lives in your house; 3) Someone who formerly lived in your house; 4) Someone you are dating or have dated; 5) The other parent of your child.
Step 1: Obtaining a Temporary Restraining Order
A temporary restraining order (TRO) is an emergency protective order which is obtained with the purpose of preventing an abuser from contacting or coming near a victim. The individual applying for the TRO will be noted as the Plaintiff, and the alleged abuser is the Defendant.
A TRO can be obtained by visiting the Family Division at the county courthouse in which the Plaintiff resides, or if it is outside of normal business hours for the Court, a TRO can be obtained at the Plaintiff’s local police station.
When applying for a TRO, the Plaintiff will need to fill out several forms and will be interviewed as to the content of the forms and the reason the individual is seeking a TRO. Any Injuries or past history of abuse should be described here. This is a sworn statement and must contain accurate information.
The Defendant will not be advised that the Plaintiff is in court seeking a TRO, and will not have an opportunity at this point to contest any facts or evidence which the Plaintiff is stating.
If a TRO is granted, then the Defendant will be served by a Sheriff’s Officer or a Police Officer. They may not be served immediately, a the Defendant will have to be located first. The Plaintiff will provide contact information for the Defendant’s work or home in order for the Defendant to be served.
The TRO will advise the Defendant to have NO CONTACT with the Plaintiff, and may provide for protections for any children or relatives of the Plaintiff. It may be that the TRO prohibits the Defendant from contacting any mutual children between the parties.
The TRO will contain the date of the Final Restraining Order (FRO) hearing. The TRO is temporary only and will only be in effect until the FRO hearing. It is very important for both parties to attend the FRO hearing; if you are the Plaintiff, the TRO may be dismissed if you don’t appear and if you are the Defendant, the a Final Restraining Order (which is permanent and has no end date) may be entered against you.
Step 2: The Final Restraining Order Hearing
Before a judge will issue an FRO (Final Restraining Order), a thorough hearing will be held in which the court will hear testimony, review evidence, and listen to witness testimony from both parties. Both parties will be able to present evidence supporting their position and in defense of the other party’s position. Evidence can take many forms, such as medical records, police reports, and witness testimony. You will also have the opportunity to testify, but the other side gets to ask you questions during cross-examination. The Judge must evaluate all testimony and evidence presented and apply it to applicable statutes and case law which dictate whether an FRO will be granted.
To award a final restraining order, a judge must find that the Defendant committed a certain act of violence, such as:
● Battery ● False imprisonment ● Criminal restraint ● Sexual assault
● Assault ● Kidnapping ● Stalking ● Lewdness
● Burglary ● Criminal trespass ● Terroristic threats ● Homicide
In addition there must be a proven prior history of domestic violence between the parties.
Finally, it must be proven that the alleged victim is in reasonable fear for their safety and a restraining order is necessary to ensure said safety.
If those points are proven by the Plaintiff, the court may grant an FRO, which prohibits the Defendant from any contact or criminal offense against the victim. The Defendant must also have their finger prints taken and be registered in a nationwide registry for domestic violence offenders. The FRO is permanent and will not be removed barring exceptional circumstances.
As part of a restraining order, a judge can prohibit an Defendant from contacting a victim and coming near his or her home or place of work. Judges can also order other protections, such as: 1) Temporary custody of minor children; 2) Financial support to cover rent or mortgage; 3) Mandatory therapy or counseling; 4) Temporary possession of real properly, like a car; 5) Prohibition on the abuser’s ability to have a firearm.
A violation of a TRO or FRO is a criminal offense and the offender will be arrested and may serve jail time.
The consequences of a TRO and FRO are serious and should be approached with seriousness; it is a good idea to consult with an attorney experienced in this area of law to fully protect your rights.