Restraining Orders and Family Law
Key Takeaways
- A restraining order is a civil protective order you can obtain from court.
- Restraining orders do not automatically lead to criminal charges being filed against the alleged abuser.
- All states have a process by which you can go to the courthouse and ask for a domestic violence protective order.
A restraining order in family law is a civil protective order. These typically arise out of allegations of domestic violence. If you need a court order to protect yourself or your child, or you have been served by law enforcement with one of these orders, contact a local, experienced family law attorney for legal help.
Types of Restraining Orders
Each state uses different terms for these types of orders, and some of the standard terms you might see in your state are:
- Temporary protective order
- Permanent protective order
- Emergency protective order
- Domestic violence restraining order
- Temporary restraining order
- Final restraining order
- Interpersonal protective order
All of these are civil court orders of protection and do not automatically lead to criminal charges being filed against the alleged abuser. However, it can be common for a prosecutor to file criminal charges based on the same allegations.
What Does a Civil Restraining Order Do?
In family court, the domestic violence protective order can do several different things. The main one is to order a respondent, which is the person against whom domestic violence allegations are being made, not to have any contact or no violent contact with the person seeking the court order.
The protective order can even address temporary child custody. This includes:
- Temporarily modifying an existing custody order
- Installing temporary child support
- Ordering the respondent to vacate a shared residence
- Ordering the respondent to stay so many feet away from the person who asked for the order
In a final order of protection, the court can even order the respondent to get anger management treatment.
If the order of protection is a no-contact court order, then the respondent may not have any contact with the person who sought the order. This means the respondent cannot call, text, email, send messages on social media, or even ask other people (like family members, friends, etc) to give the protected party a message.
Doing any of these things could lead to the respondent being held in contempt of court or even facing criminal charges in criminal court for violating the court order.
How to Ask for a Restraining Order in Family Court
All states will have a process by which you can go to the courthouse and ask for a domestic violence protective order. In general, you’ll go to the designated place in the courthouse, usually the court clerk’s office. They should have court forms you will need to fill out, often a document called a petition or an affidavit.
You’ll write out why you are asking the family court judge to grant you an order, and you will swear under oath that what you say is true. The court clerk will usually find the family court judge to review your paperwork. The judge will then either grant your request and issue a temporary court order or deny your request.
This procedure is carried out “ex parte” by the court. That means the judge is only reviewing your side of things for now. Some courts will give the parties a court date to appear regardless of whether or not an order of protection is granted. This is because they want to hear both sides and possibly still issue a final order of protection.
If the temporary order is granted, a court date will be scheduled so both parties can appear and a hearing can be done.
After Your Ex Parte Hearing
At a later court hearing, both sides will present their side of the domestic violence case. If it is just the parties, the court will hear from both. If either party wants to call witnesses or present other evidence, the court may continue the hearing on a different date. This gives the court more time to hear both sides before making a ruling,
After the hearing, when all evidence has been presented, the judge will decide if the temporary order becomes a final or permanent order of protection.
If a final order is granted, the length of time it is in effect does vary by state. Some states only allow for a final order to be for a specified length of time. Some states allow for the order to have no expiration. The judge will explain all of that at the hearing as well.
If your state only allows for the order to be for a specified period of time, there should be a way, once the order is close to expiring, to ask the court to extend the order to a new date.
Who Can Request a Domestic Violence Protective Order?
All states recognize domestic violence as a serious concern. But, not every type of relationship will qualify someone to ask the court to grant a domestic violence protective order. For instance, if you were just roommates with someone or had a friend slap you, you could not seek an order of protection in family court against those people.
The following persons generally will qualify for you to ask for an order of protection against:
- Parent/child
- Grandparent/grandchild
- Spouse or former spouse
- Current or former dating partner
- The other parent of your child
- Family members who reside in the same house (ex: stepparent/step-child, siblings, an in-law who lives in the same house)
- Victims of stalking or choking in some states
There are also types of domestic violence, as it is not just physical abuse. Other types of domestic violence include:
- Sexual abuse/sexual assault
- Emotional abuse
- Mental abuse/verbal abuse
If you or someone you know is a victim of abuse or victim of domestic violence, the family court can help. It can be daunting and scary, so getting local, experienced legal advice is always recommended. Speak to an experienced domestic violence attorney in your area for help with your domestic violence court case.
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