Restraining Orders

September 26, 2011

One of the most important things a victim can do to save his or her life is to file an order for protection, also known as a restraining order. In response to domestic violence and other abuse, the law developed the restraining order, which is a legal order created to protect a person from harm. Since a legal order carries the weight of the law, an abuser must abide by it or face legal penalties. All restraining orders are defined at the state level rather than at the federal level. However, there is only slight variation among the states as to the types of available restraining orders, who can obtain it, and under what circumstances it can be issued. Although domestic violence is one of the most common reasons for a restraining order, other instances include but are not limited to stalking, harassment, and sexual abuse.

There are various types of restraining orders such as the traditional restraining order, harassment orders, temporary restraining orders, and civil protection orders. Deciding what type of restraining order to petition for depends on your specific situation, but ultimately the judge or commissioner decides what type of restraining order can be issued. Traditional restraining orders are issued if the abuser is your spouse, boyfriend, related to you by blood, or is someone you have had a significant sexual relationship with. A second type of order of protection is a harassment restraining order, which only takes an hour to complete, but unlike a traditional restraining order, it cannot be amended. Typically, a harassment restraining order is obtained only if the victim does not qualify for a traditional restraining order. Alternatively, temporary restraining orders are often used in divorce proceedings to prevent a party from disposing of any marital assets or to protect one party from the vindictive actions of the other party. Also, issued under divorce or annulment court proceedings are civil restraining orders, which can only be enforced by the court. Furthermore, if one party violates a civil restraining order, it does not excuse the other party from abiding by the court orders, even if an attorney or an advocate advises otherwise.

The fundamental function of most restraining orders is to prevent harm and the manner in which this is done depends on provisions in the restraining order. Several different types of provisions are: stay away, no contact, cease abuse, support, exclusive use, restitution, relinquish firearms, custody visitation, and child support provisions. Stay away provisions order the abuser to not be at or near your work, school, home, or other places. No contact provisions order the abuser to stop all calls, faxes, gifts, mail, emails, or other communication. Cease abuse provisions order the abuser to not threaten or harm you. Support provisions order the abuser to provide financial support, by continuing to pay the mortgage or other temporary financial support. Exclusive use provisions order the abuser to cease all use of the home and/or car. Restitution provisions order the abuser to reimburse you for medical costs, property damages, or other damages resulting from the abuse. Relinquish firearms provisions order the abuser to surrender all weapons and ammunition. Custody visitation

provisions order the abuser to only visit the child under supervised visitation and can order that the transfer of the child only occur under safe supervision.

An abuser is guilty of violating an order if he or she fails to do what the order required or does something that the order prohibits. Violation of a restraining order subjects the abuser to fines, prison, or both. Restraining orders can be enforced against the abuser by the court or police, depending on the provision violated. Generally, the police can enforce the following provisions: no contact, stay away, cease abuse, exclusive use, and child custody. Therefore, it is critical to contact local law enforcement immediately when such an order is violated; if that is not possible, then a police report should be filed as soon as possible. In most states, witnesses or proof of the violation are not required. Reporting every violation to the police will strengthen the case against the abuser because police reports are heavily relied upon by the court to determine the penalty and other courses of action. On the other hand, violation of child support provisions can only be addressed by filing a motion for contempt in court, which leads to a court hearing to determine how the abuser violated the order and the applicable penalty.

To obtain a restraining order, contact either a domestic violence advocate at a crisis center, an attorney, or your local police department. Given that restraining orders are legal documents and take a few hours to fill out, professional assistance in filling out the forms is recommended. Advocates are particularly specialized in filing restraining orders and know how to help you qualify for available fee waivers, and are a great source of other relevant aid. For example, advocates can advise you on which important documents should be included with the restraining order application, make sure you are safe when the order is delivered to the abuser, and can assist you in finding safe housing if necessary.

An alarming number of people do not obtain restraining orders because of a common misconception that it will make an abusive situation worse. Although this perception is ill-founded, of the 1.5 million women in the United States who report physical and/or sexual abuse, only 20% seek restraining orders. However, it has been proven in recent studies that women who obtained a 12-month restraining order were fives times less likely to experience abuse than women who refused restraining orders. In contrast, studies show that temporary restraining orders, as opposed to long-term restraining orders, are not as effective since they are only valid for a short period of time.

In conclusion, the restraining order has altered the power equation between an abuser and the victim. No longer is a victim alone to defend herself. The power of the law will rise up to protect her through the restraining order, ordering no harm be done to her. Although each state dictates its own law on the scope and power of a restraining order, each state offers this basic protection. Should you consider obtaining a restraining order, contact a local crisis center or the police to find out what the process and law is in your state. Remember you are not alone; there is a legal system in place to enforce your protection.

See Also: Child custody, Divorce, Domestic violence, Homicide, Rape, Sexual harassment, Stalking

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