What is a restraining order?
A restraining order, sometimes called an order of protection, is a court order meant to protect you when you have good reason to fear for your personal safety. The person who asks for the restraining order, the person that feels threatened, is the alleged victim. The person or entity who appears to pose a threat is the alleged offender.
Restraining orders have a wide range of functions, but they are most commonly a response to one person's actions making another person feel scared. Some examples of actions that lead to restraining orders include:
- Serious threats of violence.
- Suspected child abuse.
Generally, people may seek a restraining order to stop someone from doing something they believe violates their rights.
What are the types of restraining orders?
The types of restraining orders available, and how they work, vary by state. In general, a restraining order protects people by ordering the alleged offender to stay a certain distance away from the victim until the order expires. Often, restraining orders may be related to another legal case, either criminal or civil. These are some examples of the kinds of things courts require from the alleged offender:
- Stay a certain distance away and avoid physical contact.
- Make no other contact, such as by phone, mail, deliveries, etc.
- Stop the abuse if the two people are in a shared living situation.
- Provide support, such as continued rent payment.
- Allow the alleged victim to have sole use of shared assets, such as a car or apartment.
- Pay for any damage caused, such as medical costs or property damage.
- Turn in all firearms to the local sheriff’s office until the order is lifted.
State courts provide for various types of restraining orders tailored to different types of offenses, such as:
- Domestic violence.
- Civil harassment by neighbors or former friends.
- Workplace violence.
- Elder or dependent adult abuse.
Restraining orders may also be grouped by the severity of the danger or a case's court status. California courts, for instance, provide three main types of restraining orders:
- Emergency Protective Order. Law enforcement may order this type of order if they believe the alleged victim is in immediate danger.
- Temporary Restraining Order (TRO). A TRO may be issued by a judge before the case is heard if they believe the alleged victim is in danger at that time.
- Permanent Restraining Order. A judge may grant a permanent restraining order if they decide after a court hearing that more protections are required. It can last for three years for civil harassment and five years for domestic violence.
How can I get a restraining order?
It is in the court’s interest to make sure that restraining orders are granted only to those who truly need their protections. However, courts also realize this protection is needed quickly. State laws vary, but to get a restraining order, you may need to meet several legal requirements.
In Texas, for example, you are likely to qualify for a protective order if all of these things are true:
- Someone has hurt you or threatened to hurt you.
- You have reason to believe they may hurt you again.
- Either you or someone close to you has a close relationship with the alleged abuser.
Texas law may also allow you to get a restraining order if you have had an order against this person in the past and they have violated its terms.
It may be wise to seek advice or help from a lawyer, legal aid clinic, or social worker experienced in this area. To start the process, filing documents with the court is required. After filing, you will need to arrange to have those documents delivered to the person you hope to restrain. You can deliver them yourself, hire law enforcement, or a process server to handle the delivery for you. Then, the court usually schedules a hearing to decide whether to give you the order.
Another option is that a police officer responding to a call may call a judge and ask for an emergency protective order. In this kind of case, the order would have legal force as soon as the judge approved it.
The judge at your hearing will need some proof that you need a protective order. The proof may include:
- Police reports.
- Statements by family, friends, or social workers.
- Medical records.
- Video recordings and photos.
- Digital communication records, like emails and text messages.
The alleged offender might live within the distance they are ordered to stay away from. For example, they could be a family member or roommate. If this is the case, they may be required to move until the order is lifted. However, judges will typically require clear evidence to support ordering someone to leave their home.
When does a restraining order start?
Some restraining orders, such as an emergency protective order, have legal force as soon as they are approved by a judge. A temporary restraining order, once granted, also goes into effect immediately. An emergency or temporary order is usually legal until a certain date or a judge orders otherwise.
So-called permanent restraining orders also start when ordered by a judge. These usually take much longer to get, but can last a few years. The court may extend a permanent restraining order if it is clear that the alleged offender is still a threat to the person requesting it.
Can a restraining order be dropped or challenged?
The alleged offender may argue that a temporary order is not valid in court. Generally, if a victim presents evidence, an alleged offender may also need to present evidence or witness statements to show the alleged victim is wrong. Alternatively, an alleged offender may be able to argue that the alleged victim's claims and evidence do not meet the requirements for the court to issue a restraining order.
If the judge agrees with the alleged offender, then the temporary order will typically expire instantly and will not become a permanent order. If the judge maintains the order, the alleged offender may be able to take further steps to fight it, but will need to abide by the order in the meantime.
Either party may usually ask to change or drop the restraining order by filing documents with the court. The court often schedules a hearing to listen to the request and arguments from both sides. Then, a judge typically makes a decision based on the strength of the evidence and the reasons for the request.
Do I have to pay my harasser’s legal costs if the court rejects my restraining order?
Maybe. The rules vary from state to state, and may depend on the type of restraining order sought. In California, for example, if a court issues a permanent restraining order, the offender may be ordered to pay the victim’s legal costs. On the other hand, if the offender wins, a victim can be ordered to pay their costs. Even when allowed, however, judges have discretion to reject the request to have the other side’s legal costs paid by the losing party.
Restraining orders are very serious as they deprive a person of several constitutional rights and liberties. An individual seeking a restraining order must be prepared to prove the need for one and show that they meet the legal requirements. Additionally, if you knowingly file a false request for a restraining order or submit false evidence, you can be charged with a felony.
Legal problems involving abuse, threats of violence, or harassment can be complex. If you have questions about restraining orders, reach out to a Rocket Lawyer On Call® attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.