Protection Orders, Restraining Orders, Domestic Violence Injunctions

Office for Victims of Crime. Legal Series Number 4. Provides an overview of state laws and current issues related to the enforcement of protective orders.This bulletin and the others in the Legal Series highlight various circumstances in which such laws are applied, emphasizing their successful implementation. January 2002.

How Orders Happen

Orders from the court in regard to domestic violence situations can occur in two ways. In the first, a suspect is arrested and brought before the judge to have the charges against them read and bail set (the arraignment process). If the judge allows the suspect is to be freed from jail until their court date, the judge can also issue a criminal restraining order. The order can be of various levels. One level, called a protection from abuse order (PFA), MIGHT still allow contact between the victim and the accused, or the accused and their children, but would specify that if any FURTHER instances of violence occur, that there will be much greater consequences for the suspect. Much more commonly however, the judge sets out a full restraining order, saying that the accused must have NO contact with the victim until the criminal case has worked its way through the system. The judge can issue this order even if the victim doesn't WANT the order issued. It can also be enforced even if the victim doesn't WANT it enforced. Violating the order means that the accused faces additional criminal charges, that those charges are often at a higher level, AND, if children are living in the home, that social services (child protective services) gets involved and can ask the court to remove the children from the home for willingly exposing the child(ren) to the individual accused of violence against the court's order (the term used is "failure to protect"). These types of orders occur as part of the criminal process linked to an arrest.

The second category of domestic violence orders for protection are the ones brought by the victim themselves in the civil courts. Unlike the criminal court process, the victim is the one who decides to ask the court to issue the order, and the victim, not the prosecutor like in a criminal case, is the person who will talk to the judge. Note that this civil process does NOT need there to be an arrest, or ANY level of police involvement before a victim can seek such an order.

Filing your petition

These cases are brought in your local county court, and most offices of the Clerk of Court have excellent online resources with the forms needed and information on how to submit your request to the court, so be sure to look them up and check out their online information. A domestic violence legal advocate can make this process much less confusing, and his/her services are free. Call your local domestic violence program and ask for assistance or ask at the court or your local sheriff's office if there is a legal advocate available. A state by state list can be found here. There is often a small filing fee to submit your request, but this fee can be waived if it would create a hardship on the victim or your local domestic violence program might pay it for you (ask your advocate).

Then:

Go to the Clerk's Office at the courthouse in your community and fill out the papers. This usually consists of a form called a petition that you'll fill out - telling the judge how you've been harmed, physically, emotionally or otherwise. You don't need to go into a lot of background as to what led up to the abuse, just be simple and clear - saying exactly what happened and when. Be sure to include if there have been threats or if you or your children have been harmed or scared. If you've ever called the police because of an incident with your abuser, it's important that you put in that information. Once you've finished your petition, someone in the Clerk's office will need to notarize it - so be sure to have photo ID with you.

Talking to the judge

The judge will read your petition and then ask you questions. Some judges only let you talk about things you've written in your petition, so be sure not to leave anything out that you might want the judge to know! If you have photographs of any injuries (photos taken by police or at a medical facility will carry MUCH more weight), medical reports, any notes your abuser has left, even answering machine tapes or voicemails with threats on them, bring them with you. If the judge is convinced that you might be in danger, they can grant your petition on the spot. This will be your temporary order. The temporary order will last until there is a formal hearing with both the petitioner and the respondent present to present their sides to the judge.

You will be given a copy to carry with you at all times and a copy to file with the police. You may want to get a couple extra copies if you can afford to shell out a couple bucks.

Serving the order

Once the order is issued, it will become effective once your abuser has been notified by the court that the order exists. This means the abuser has to receive a copy. If your abuser has been arrested for domestic violence or some other crime, they will likely be served while still in jail. If not, then they will have to be located before they can be served.

In most places, the sheriff's office serves orders because a deputy is a sworn officer of the court. It helps if you can tell the deputy when and where they can serve the orders on your abuser. Remember that your safety plan should include information about where they work, where they hang out, what they drive, and other information that can help law enforcement or a process server to find the subject and serve the court's order to them. They will serve the orders, and if there is a vacate order, they can force an abuser to leave a home that you share. In all but the larger cities, these orders are usually served by the sheriff's office as opposed to a city police department. If you have questions about getting your order served, save yourself a trip and start by calling your county sheriff's office.

In other places, the Clerk of the Court will simply send a copy via Registered Mail. Finally, in some places YOU might be responsible for serving the orders. It is recommended for your own safety that you do NOT try to do this yourself. Instead, you can use a process-server. Check with the Clerk of Court to see if they maintain a list of licensed or recommended servers or ask your local domestic violence program for help.

Hearing for perminent order

Within 10 days to 4 weeks (depending on where you live), you will attend another hearing where your abuser may be present to tell his or her side of the story. Your abuser may bring an attorney with them to help tell their side of the story. Again, your local domestic violence program can help point you in the right direction for finding a pro-bono attorney to help with YOUR side of things. This may be very difficult, and it helps to have an advocate present for support. You will tell your story again, and at this time the judge can extend the protective order for a year or more. Perminent doesn't really mean "forever", but the orders can be renewed/extended.

It is VITAL that you bring as much evidence to this second hearing as possible. Friends, family or neighbors who might be witnesses to fights, physical abuse or have seen bruises or injuries should come along. Any police reports are A MUST as are any photos showing injuries or medical bills showing that you received medical care after an incident of violence.

Make sure to go over what you want to say ahead of time. Your time in court will be stressful and practicing what you want to say will make you more confident and less nervous. It's a good idea to make some notes to bring with you to make sure you don't forget to tell the judge anything important. Make a list of what action or help you'd like from the court. If you need to talk about custody of the children, child support, drug counseling, or who gets to take the car or live in the home, this is the time for you to bring it up. If you're going to ask the court that your abuser pay for your expenses, bring copies of the bills or receipts.

PROTECTIVE ORDERS CAN DO MORE THAN PROTECT YOU.

Any of the following provisions that apply to your situation may be added to the basic order.

• Restraining Order - Your abuser must not come near you or abuse you again.
  
  
• Vacate Order - Your abuser must move out of the shared residence.
  
  
• Child support Order - Requires your abuser to provide temporary support for the children.
  
  
• Custody Order - Asks for temporary sole legal custody of your children. Remember, without a court order saying otherwise, a spouse or other legally recognized guardian has every legal right to take the kids.
  
  
• Restitution Order - Requires an abuser to compensate you for lost wages, medical expenses, or other costs and damages.
  
  

Remember, the judge and others can't read your mind...it's up to you to express the concerns and problems going on in as much detail as possible to ensure that you receive the full level of service from and protection by the "system" as possible.

If the order is granted...

Once you have your order, it's vital that you keep in mind that while such an order now represents a special relationship between you and the court and between you and law enforcement, the bottom line is: it's just a piece of paper. It's value to you is that it will DETER some abusers from continuing their actions against you because of the stiffened penalties for violating the order and will help in charging and sentencing an abuser for additional activities that might happen in the FUTURE. However, it cannot PREVENT someone from taking any action if they are willing to face the penalties. In some relationships, the issuing of a restraining order can serve to further anger and inflame an abusive partner, especially if they start to panic about the relationship being over. For this reason, it is important that you have worked on your safety plan and that you remain vigilant and cautious against an abuser continuing or escalating their activities (such as stalking or harassing phone calls).

A restraining order is an important piece of the puzzle - but don't make the mistake of thinking it's the ONLY piece!

Relevent Research

Protection Orders and Intimate Partner Violence: An 18-Month Study of 150 Black, Hispanic, and White Women
Judith McFarlane, Ann Malecha, Julia Gist, Kathy Watson, et al. American Journal of Public Health. Washington: Apr 2004.Vol.94, Iss. 4; pg. 613, 6 pgs.

McFarlane et al compared types and frequencies of intimate partner violence experienced by women before and after receipt of a 2-year protection order. Among other things, abused women who apply and qualify for a 2-year protection order, irrespective of whether or not they are granted the order, report significantly lower levels of violence during the subsequent 18 months.

Domestic Violence Across State Lines: Full Faith and Credit Clause, Congressional Power, and Interstate Enforcement of Protection Orders

Emily J Sack. Northwestern University Law Review. Chicago: Spring 2004.Vol.98, Iss. 3; pg. 827, 80 pgs

Sack explains the nature of domestic violence protection orders in both Violence Against Women Act (VAWA) and VAWA 2000, in order to understand how the implementation of full faith and credit impacts their interstate enforcement. He claims that states must come into compliance with both the Constitution's and VAWA's full faith and credit requirements; until then, victims of domestic violence will continue to be denied the full protection to which they are entitled by domestic violence protection orders.