Domestic Violence Restraining Orders
A domestic violence restraining order is a court order issued to prevent acts of domestic abuse. A domestic violence restraining order may be issued after a criminal or civil proceeding. The judge may issue this order whether or not the victim asks for it, and the order may be enforced, regardless of the victim's desire for it to be enforced. If the abuser violates the order, he faces additional criminal charges for violating the order.
Domestic violence restraining orders may also be issued in civil court. Unlike the criminal process that follows an arrest, in a civil proceeding, the victim petitions the court for the restraining order. The petition sets forth the way in which the victim has been harmed and when the violence occurred. The victim, known as the petitioner, will appear at a preliminary hearing before the judge and answer questions regarding the allegations in the petition.
Obtaining a Domestic Violence Restraining Order
Domestic violence, also called intimate partner violence, is generally defined as felony or misdemeanor violent crimes that are committed by a current or former spouse of the victim, by a person with whom the victim shares a common child, or by a person who is cohabiting or has cohabited with the victim as a spouse. Domestic violence includes acts of physical, sexual and emotional abuse.
To support the allegations, the victim is advised to bring supporting documentation, if available, such as police reports, photographs of any injuries, medical reports, copies of any threatening emails or notes, tapes of threatening phone calls or voicemail messages, etc. If the judge believes the victim is in any risk of danger, he will issue a temporary restraining order against the abuser. The victim is advised to keep the restraining order with her at all times, and to file a copy with the local police department.
The abuser, also known as the respondent, will be served with a copy of the restraining order and a notice to appear before the judge to respond to the allegations set forth in the petition. In many jurisdictions, the sheriff’s office serves the restraining order on the abuser. In other jurisdictions, the victim is responsible for having the papers served on the abuser by hiring a process server.
On the date of the hearing, both the victim and the abuser will be required to appear before the judge. Both parties are entitled to bring a lawyer to the hearing. The victim is advised to again bring all of the evidence to the hearing, which may also include live witnesses. After hearing both sides, the judge will decide whether the restraining order should be lifted or whether it will be made permanent. A permanent order does not last forever, but is usually issued for an extended period of time, e.g., a year or more.
A typical restraining order will order the abuser to physically stay away from the victim, and generally includes language ordering the abuser not to abuse, harass or threaten the victim. If the victim and abuser were living together, the restraining order may direct the abuser to move out of the residence. In addition, the order may require the abuser to compensate the victim for any medical expenses or other costs that resulted from the abuse.
It is important for the victim to realize that a restraining order may deter the abuser from committing further abuse, however, it cannot prevent an individual who is intent on committing violence despite the penalties that may result from violating the order. In fact, the issuance of a restraining order may actually increase the abuser’s anger and potential for violence. Therefore, the victim is advised to exercise caution, be alert to the possibility of escalating violence, and be ready to call the police if there are any indications that the abuser is about to violate the order.