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Facts to Know About Restraining Orders

Restraining orders, also called protective orders, are a type of order that protects a person(s) and their business from danger. It is the court’s exclusive right to issue a restraining order. A court issues a restraining order when there is a threat to a person or their business or when they may come to harm in certain situations.

Certain criminal offences, civil offences, and allegations may warrant a court to issue a restraining order against a person. These allegations include assault and battery, sexual harassment and abuse, other forms of harassment, stalking, domestic violence, and gender-based violence.

What Power Does a Restraining Order Hold?

A restraining order can stop a person from coming anywhere near the person who files the order. The order prevents the restrained person from coming close to their family, home, or business. 

In cases of domestic violence and harassment, a restraining order may include clauses that prevent the restrained person from contacting the one who filed for the order. This prevents contact via email, text, or calls. 

Types of Restraining Order

Temporary Restraining Order: A court may issue a temporary restraining order when it is yet to look into a case brought to it. To prevent any recurrence before the court's sentencing, the court issues a temporary restraining order against the accused. 

This order lasts until the court sits. Then, the court assesses the facts and proof of the matter and decides if to continue with the order, make it permanent, or decide on its longevity.

Emergency Restraining Order: The police have the right to issue a restraining order against a crime suspect lasting for a week in emergencies. The police can only issue this order after doing the necessary background findings.  

It is especially the case with domestic violence. The plaintiff may file for a permanent order after or before the order elapses.

Permanent Restraining Order: Only a court can issue a permanent restraining order. The court only issues this type of order after a hearing and after reviewing the facts and evidence of the case.

There are different sub-categories of permanent restraining orders. They include the following:

    • Restraining orders on civil harassment: A court may decide to issue a restraining order against people who fall in the category of friends or strangers and are not the family members of the person who files for the order. 
    • Restraining orders on minors: This is an order called juvenile restating order. It is a restraining order to protect minors. A minor/juvenile is someone who has not attained the legal age of an adult. This order protects them from harassment or harm from their fellow minor or an adult.
  • Restraining order on domestic violence: Courts issue restraining orders against the abuser or accused in a domestic violence case. The court may decide whether the duration of the order is for a lifetime or a shorter period of time. This type of order extends to the victim's family members, children, and any other persons they may have a romantic relationship with in the future.
  • Restraining orders for elders: This type of order covers elder abuse. When people reach a certain age, they may no longer have the physical strength to guard themselves from abuse. This type of restraining order protects anyone who is an elder from anyone who may or has abused them.
  • Restraining order on workplace violence: A company (or generally any employer of labour) may file for a restraining order to protect their employees. It may be for harassment, sexual harassment, violence, or potential harm around the workplace. This type of order is unique by jurisdiction and uncommon in all states.

What is the Duration of Restraining Orders?

Different factors come into play when deciding the longevity of a restraining order. They include the restraining order type, potential harm, the court or case location, and facts about the issue.

The following factors chiefly determine restraining orders’ duration:

  1. Emergency orders last only a week or a few days or until a court hearing.
  2. When a court grants an order before reviewing all the facts and evidence of the case, such orders only last until the completion of the court hearing.
  3. A court may grant a permanent restraining order, which may last for many years or the entire lifetime of the accused.
  4. The longevity of a restraining order varies by state. Some jurisdictions limit the longevity of a restraining order but allow the court to overrule this limitation in certain situations and for certain offences.
  5. The accuser or the accused may ask the court to extend or cut short the longevity of a restraining order by presenting facts that support their claims.
  6. After reviewing the facts, a court may grant a more extended restraining order
  7. The severity of the situation or potential harm is also a factor that decides the longevity of a case.

Enforcement of Restraining Orders

After issuing a restraining order, the court will send a copy to both parties—the claimant and the defendant. The local police department also gets a copy of the order. As the accuser, you should always carry a copy of the order to ensure its enforcement. 

Under the law, violating a restraining order is an offence, so when a person violates the order, you should call the police. The police may arrest the restrained person and charge them in court.

Violating a restraining order may result in criminal or civil punishment; the court determines which applies to every case. The court considers what leads to breaching the order to determine the offence’s category. Also, the type of order and the reason behind the order determine if the violation should fall under criminal or civil offence.

How Do You Argue against Restraining Orders?

The most important thing to do if you have a restraining order against you is to comply with the terms of the order. A temporary order is most likely the first type of order you will get before scheduling a court hearing. You should comply with this order.

“You may contest the order and the making of it a permanent order. To do this, you need sufficient evidence and witnesses to corroborate your story or narrate the incident,” says attorney Mark Sherman of The Law Offices of Mark Sherman, LLC.

There are other factors that the court may consider to alleviate a restraining order. These factors include the involvement of children, how the order affects your work, and if the order limits your access to your house and workplace. 

Noteworthy is that the court only considers these factors, and they do not stand as a reason not to issue a restraining order. The court may decide to order a restraining order against a person after receiving all the evidence and facts, even if it means restricting the person’s access to their home or workplace.

Should You Hire an Attorney?

Two instances often warrant hiring an attorney—when you want to file for a restraining order against an individual, and when you want to overturn a tentative restraining order against you.

A lawyer will also help to gather evidence that will help your case. The lawyer will help find witnesses and even cross-examine witnesses to tackle their stories' inaccuracies. 

A lawyer will advise you on how to move forward and the critical steps to protect yourself, your family, and your loved ones.

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