Tag Archive | Restraining order

Difference Between Restraining Order and Order of Protection

  1. Orders of Protection

    • A court issues orders of protection to victims of domestic violence. Orders demand that an abuser stop threatening, stalking or physically assaulting the victim. Orders often demand that an abuser also stop contacting the victim in any form, including in person, by phone or by mail.

    Restraining Orders

    • A restraining order is issued by a court to protect someone from threats or physical abuse. Restraining orders are different from orders of protection because restraining orders can also include provisions for property, child support, spousal maintenance and child custody when these are issues during a divorce or separation.

    How Long Orders are Good For

    • One difference between orders of protection and restraining orders is how long the orders last. Restraining orders are good for a period of time set by the court, determined on a case by case basis, usually at least six months, but sometimes for several years. Extensions are available, but must be requested and approved before the initial order expires. Orders of protection are in force for at least one year, but can be issued for longer durations as the court sees fit. Orders of protection can also be renewed upon request to the court.

    Penalties for Violation

    • The main difference between restraining orders and orders of protection is the penalties for violation. If an abuser violates a restraining order, he or she will only face a contempt charge and be required to pay a fine. However, if an abuser violates a protective order, criminal charges can be filed, ranging from a misdemeanor to a felony, depending upon the circumstances of the violation and the number of violations already against the abuser.

Order of Protection

 An order of protection (also called a restraining order) is an official legal document, signed by a judge, that is filed against a current or former family member or household member or other similar relationship. The order forces that individual to keep at a distance and is intended to prevent his or her abusive behavior toward you. Enforceable in court, it can be drafted to meet your specific needs as they apply to your situation.

How It Works
An order of protection can require the abuser to stay away from you and limit other forms of access; it can prevent the abuser from contacting you by phone, cell phone text messages, email, mail, fax, or third parties. It can force the abuser to move out of your home, give you exclusive use of your car, and award you temporary custody of your children along with child support, spousal support, and the continuation of insurance coverage.

If the order of protection is violated by the abuser – if he or she visits you at home, in the workplace, or anywhere else or makes phone calls, sends emails, or attempts to contact you, the abuser can be arrested and placed in jail.

How To Obtain One
To get an order of protection, you have several options. You can contact the state’s or district attorney or inform the police that you wish to apply for an order of protection. You can also go to the county in which you or your abuser resides, and ask the court clerk for “Order of Protection” forms which must be filled out.

After the paperwork is filed, a hearing date will be set (typically within 14 days) and you will be required to appear in court on that day. The hearing may take place either in family court or criminal court. The judge will ask you to prove that you have experienced abuse or been threatened with violence. Witnesses, police reports, hospital and physician reports, and evidence of physical abuse or assault are often necessary to convince the judge to issue an order of protection. Physical evidence of abuse such as injuries caused by abuse or photos that show past injuries, property damage or objects used in the assault will help make your case.

How It Protects You
The order of protection provides you an opportunity to define your safety needs. If children are involved, you can request custody and restrictions on visitation or ‘no contact’ orders. Whenever the abuser violates the terms of the order of protection, you should call the police.

Once you obtain one, it is imperative that you make multiple copies of the document. It is important that you carry a copy of your order protection at all times, particularly if you have children and there are custody and visitation limitations.

 

What Happens In Court To Get The Restraining Order

What happens in court?

You will appear before a judge so you can tell him/her what happened. You will usually appear before a judge without the abuser being present.

When you return to court on the date indicated in your order, the abuser has a right to be present. Both you and the abuser will have the opportunity to tell the judge what happened between you. You are allowed to bring a lawyer to this hearing, but it is purely your choice. At the end of this hearing, the judge will determine if you should receive a final order, for how long, and under what conditions.

If the abuser does not appear at the hearing, the judge will either continue the temporary order in effect until the abuser can be brought into court, or will enter a final order if there is proof that the abuser was served with the T.R.O./Notice to Appear. The sheriff or police should have proof of service. You can not be asked or told to serve papers on the abuser. If you don’t appear, and have not made arrangements with the court to reschedule the case, someone from the court will attempt to contact you by phone at home or at work, or they may send you a certified letter if you have no phone. The courts take domestic violence very seriously, and will be worried about your safety if you do not call. If they cannot find you, your restraining order may be dismissed and you will no longer have the protection granted in the order.

What happens after court?

The court will give you a copy of the order. Be sure to ask someone before you leave the court if there is anything you don’t understand. Carry it with you at all times. If the abuser does not obey the order, call the police. The police have to arrest an abuser who violates any part of the order that protects you from threats or violence.

You have the right to police protection. If you carry your order with you at all times, it will be easier for the police to understand your current situation. If you lose your order, or it gets destroyed, return to the court and obtain another copy.

What can you do if the abuser violates the order?

If the abuser violates any of the other parts of the order, call the police. For some violations (having contact with you or coming to the house, for example) or if the abuser violated the order by committing a crime, (for example, stalking you, harassing you or trespassing) the local police must sign a criminal complaint for contempt of the court order.

Can I file criminal charges?

You can file criminal charges against the abuser for acts of domestic violence, because they are all crimes. Criminal charges can only be filed at your local police department. For very serious crimes, a prosecutor may take your case to state criminal court. You do not have to file criminal charges, but the law does allow you to file them if you choose, even if you also get a restraining order. In most states you have at least a year after any incident to file criminal charges. The police can also file charges on their own and must do so when you show signs of injury or if a weapon was used. If the abuser is found guilty of the criminal charges, the court can impose fines, probation, or even jail as punishment.

How Long Does A Restraining Order Last

When you first get protection under the law, it is only temporary. The order is called a T.R.O. for Temporary Restraining Order. You must return to court on the date indicated in the T.R.O., which will be about 10 days later in most states. Both you and the abuser will be asked to appear in court on that date. During the 10-day period, the police or Sheriff’s Office will serve the abuser with a copy of the order so the abuser will know when the hearing is scheduled. Keep a copy of the order with you and give a copy to the police in any town where you think the abuser might bother you.

 

I must say in my case though, mine was not temporary. Mine was for a year. But I had proof on my body of what he had done to me.

What Does A Restraining Order DO

 

If you are a victim of domestic violence, a judge can sign an Order of Protection that requires the abuser to obey the law. The order is very specific in as far as what the abuser can and can’t do.

 

  • The abuser can be ordered not to have any contact with you, in person or by phone, at home, work, or almost anywhere you ask the court to put in the order. The order against contact may also protect other people in your family. 
  • The court can order the abuser to leave the house or apartment that you and the abuser share; even if it is in the abuser’s name. 
  • Except in unusual situations, the court will grant you custody of your minor children. In some states the court can also order the abuser to pay child support and support for you. The abuser may also be granted visitation with the child/children under certain conditions. If the children are in danger of abuse, you should let the judge know why you think so. 
  • In some states the court may also order the abuser to pay for costs that resulted from the abuse, for example; household bills that are due right away, medical/dental treatment, moving expenses, loss of earnings. The judge can also make the abuser pay your attorney’s fees, and can make the abuser pay damages to you or other people that helped you or got hurt by the abuser. 
  • The judge may order the abuser to receive professional domestic violence counseling, or tell the abuser to get evaluated, or to go to AA or NA. You can agree to go to counseling if you want to (or to a free program like AA, AlAnon, or a domestic violence program), but the judge should only make it an order for the abuser. 
  • The judge can order the police to escort the abuser to remove personal items from the residence, or shared place of business, so that you are protected by the police during any necessary contact. 
  • The judge has the power under the law to order anything else that will help to protect you, as long as you agree to it. 

Restraining Orders

What is a restraining order?

A Restraining Order is a court order intended to protect you from further harm from someone who has hurt you; to keep the abuser away from you, or to stop harassing you, or keep the abuser from the scene of the violence, which may include your home, place of work, or apartment. It is a civil order and it does not give the abuser a criminal record.

 

A victim of domestic violence can obtain a Restraining Order. A victim of domestic abuse means a person protected by the law and shall include any person who has been subjected to domestic abuse by a spouse, or any other person who is a present or former household member and where the victim is 18 years of age or older or who is an emancipated minor. A victim, of any age, who has been subjected to domestic violence by a person who she/he says will be the father/mother of the child when the pregnancy is carried to term is also covered by this law. A victim, of any age, also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

Domestic violence means the occurrence of one or more of the following acts committed against a victim by an adult or an emancipated minor:

Help for Abused Men

Help for abused men: Why men don’t leave

Many people have trouble understanding why a woman who is being abused by her husband or boyfriend doesn’t simply just leave him. When the roles are reversed, and the man is the victim of the abuse, people are even more bemused. However, anyone who’s been in an abusive relationship knows that it’s never that simple. Ending a relationship, even an abusive one, is rarely easy.

You may feel that you have to stay in the relationship because:

  • You want to protect your children. You worry that if you leave your spouse will harm your children or prevent you from having access to them. Obtaining custody of children is always challenging for fathers, but even if you are confident that you can do so, you may still feel overwhelmed at the prospect of raising them alone.
  • You feel ashamed. Many men feel great shame that they’ve been beaten down by a woman or failed in their role as protector and provider for the family.
  • Your religious beliefs dictate that you stay or your self-worth is so low that you feel this relationship is all you deserve.
  • There’s a lack of resources. Many men have difficulty being believed by the authorities, or their abuse is minimized because they’re male, and can find few resources to help abused men.
  • You’re in a same sex relationship but haven’t come out to family or friends, and are afraid your partner will out you.
  • Denial. Just as with female domestic violence victims, denying that there is a problem in your relationship will only prolong the abuse. You may believe that you can help your abuser or she may have promised to change. But change can only happen once your abuser takes full responsibility for her behavior and seeks professional treatment.

Help for abused men: Finding support

For tips on safely leaving an abusive relationship

See Help for Abused and Battered Women. While it’s written specifically for women, the emotional issues are similar so can be helpful to men as well.

Domestic violence and abuse can have a serious physical and psychological impact on both you and your children. The first step to stopping the abuse is to reach out. Talk to a friend, family member, or someone else you trust, or call a domestic violence helpline.

Admitting the problem and seeking help doesn’t mean you have failed as a man or as a husband. You are not to blame, and you are not weak. As well as offering a sense of relief and providing some much needed support, sharing details of your abuse can also be the first step in building a case against your abuser and protecting your kids.

When dealing with your abusive partner:

  • Leave if possible. Be aware of any signs that may trigger a violent response from your spouse or partner and be ready to leave quickly. If you need to stay to protect your children, call the emergency services. The police have an obligation to protect you and your children, just as they do a female victim.
  • Never retaliate. An abusive woman or partner will often try to provoke you into retaliating or using force to escape the situation. If you do retaliate, you’ll almost certainly be the one who is arrested and/or removed from your home.
  • Get evidence of the abuse. Report all incidents to the police and get a copy of each police report. Keep a journal of all abuse with a clear record of dates, times, and any witnesses. Include a photographic record of your injuries and make sure your doctor or hospital also documents your injuries. Remember, medical personnel are unlikely to ask if a man has been a victim of domestic violence, so it’s up to you to ensure the cause of your injuries are documented.
  • Keep a mobile phone, evidence of the abuse, and other important documents close at hand. If you and your children have to leave instantly in order to escape the abuse, you’ll need to take with you evidence of the abuse and important documents, such as passport and driver’s license. It may be safer to keep these items outside of the home.
  • Obtain advice from a domestic violence program or legal aid resource about getting a restraining order or order of protection against your spouse and, if necessary, seeking temporary custody of your children.