Restraining Orders in the Context of Family Law

Written by Greg Quimby on . Posted in Restraining Order

First let’s define some terms:

  1. The legal term for a restraining order is a protective order.
  2. The person requesting the restraining order is called the protected party.
  3. The person who is order to stay away from another person or location is the restrained party.

It is not uncommon for a divorce to begin with one party getting a restraining order against the other party. Sometimes restraining orders are necessary to prevent further violence or threats of violence. Sometimes restraining orders may provide a cooling-off period for the parties. Sometimes restraining orders are used by one party to gain a perceived legal advantage over the other party in a divorce or child custody proceeding.

A party may apply to the court for a temporary restraining order with the intention of gaining a permanent restraining order. A temporary restraining order is an ex parte proceeding.  An ex parte proceeding means it is done without all parties being notified. A party makes an application for a temporary restraining order.  That party appears that same day before a judicial officer who may have questions for the applicant. At that juncture, the judicial officer decides whether to issue the temporary restraining order based solely on the application of the party seeking the restraining order. The restrained party is not present and generally does not even know that there is a hearing.

Typically the sheriff’s department serves a copy of the temporary restraining order on the person being restrained. The hearing is set in about 14 days. At that point in time, both the protected party and the restrained party are heard by the court. The options are:

  1. The protected party may dismiss the temporary restraining. In that case there’s no further legal action and there is no restraining order.
  2. The restrained party may allow the restraining order to enter against them without admitting to the allegations made by the protected party. At that point in time there will not be a hearing, however, the court will make the temporary restraining order into a permanent restraining order.
  3. If the protected party still wants the restraining order and the restrained party does not agree then the court will hold a hearing. At the end of the hearing the court may either dismiss the temporary restraining order or make the restraining order permanent.

In order for the court to grant a permanent restraining order it must find two things:

  1. That there was an act of violence or threat of violence perpetrated against the protected party made by the restrained party.
  2. That unless the court takes action, the violence or the threat of violence will continue.

If a party seeks a continuance of the restraining order hearing the court, for good cause shown, may grant a continuance. If the other party objects to the continuance, the court must set the hearing within 14 days.

Restraining orders may have other orders embedded in them. For example, if the restrained party is also the party who pays the bills, that party may be order to continue paying the bills. The idea behind this is that the protected party may be financially unable to pay the normal living expenses. The protected party should not have to choose between being protected and being able to pay the bills.

The protected party, contrary to most people’s perception, is not prevented from having contact with the restrained party. The only person that can enforce the restraining order is the protected party. It is incumbent upon the restrained party to stay away from the protected party and to stay away from any of the properties listed in the restraining order. Typically the court lists both the home and workplace of the protected party.

The court that handles restraining orders does not have the authority to issue a restraining order against a biological parent and their children. That would be, in essence, terminating that parent’s rights. The court will order temporary parenting time until the domestic court can make orders concerning parenting time. The parenting time ordered through the restraining order court may be limited and even supervised.

Violations of the restraining order can result in the restrained party being arrested and charged with a crime (violation of her restraining order). The protected party cannot be charged with violating the restraining since the protected party is not ordered to stay away from the other party.

The attorneys at The Law Office of Greg Quimby are experienced in providing legal representation regarding the complexities of restraining orders.  The information you obtain at this site is not legal advice nor is it intended to be legal advice.

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