Last Updated on May 11, 2022 by Fair Punishment Team
A restraining order is a demand from the court to restrict a person’s contact with another person. They differ from state to state in terms of their legislation and can be quite difficult to obtain. When it comes to the requirements for a restraining order, this is no different.
You’ll notice differences in many states and may find it hard to get – so we’re going to look at the general rule of restraining order requirements.
Obtaining A Restraining Order: Step By Step Guide
It’s first important that we understand how you would go about obtaining a restraining order to begin with, so we’ve compiled a step by step list to assist you with that.
Work Out Which Court You Need
Understanding which court you’ll need to use can be trickier than you would first think. States will alter their requirements accordingly, so variables such as what your relationship with the person you want to apply a restraining order against is, might affect what court you go to.
Generally, you can expect to use a family court but that’s not always the case.
Family courts will often deal with restraining orders regarding domestic abuse and violence.
The court can hear your case if you are related to the person you want the order to be against such as a partner or other family member. You can also apply here if the person is an ex (former) partner.
If you’ve had no previous romantic or familial relationship with the person you want to place the order against, a civil restraining order can be asked for.
This could be to try and prevent someone who may be harassing you at your place of work to cease and stay away.
Criminal courts will issue a criminal restraining order if it is deemed necessary during a criminal court case. The requirements for this type of restraining order will depend on what the judge decides.
Get Your Paperwork In Order
Again, the paperwork which will be required will differ depending on the state you reside in, but you can expect that specific paperwork will need to be completed.
This might include things such as a notice of hearing or a service form.
When a case of domestic violence is the reason behind applying for a restraining order, you should be able to collect the relevant documents at your nearest office of the court clerk or at a shelter for victims of domestic abuse.
You’ll likely need to begin proceedings with a petition and covering letter which will inform the court exactly what you need, along with an affidavit which will inform the court of the necessary information as to why you need a restraining order (such as events that lead up to this point).
Some courts may require more paperwork than this, but you can use a general rule that these will be requested.
Complete The Forms Correctly
The forms you will need to fill out will have to be completed correctly.
These will also need to be completed with other forms that require your name, your address and other contact information, along with the relevant details of the person or persons you’re hoping to file the protective order against.
It’s not too bad if you can’t complete all the information of the person you want to file the order against but you should not create fictional information or guesswork.
You will need to officially sign the affidavit, petition and supporting documents before a notary public, which basically means getting a witness to ensure the forms are genuine.
The court can likely help you if you do not know where to source a notary person. Banks can often offer a notary without charging you for the service.
Ensure You Get Photocopies Of Everything
A clerk’s office will normally ask you to bring and provide the original documentation along with two copies of them.
One is for you to keep and the other is for the court. This is different depending on which state you’re in too. If you live in California for example, you would have to provide 5 copies for the court.
Filing The Paperwork
Most states waive the costs for filing restraining orders due to their nature.
As soon as the initial paperwork is successfully filed, you will receive a temporary restraining order that will prevent the person you’ve filed it against being able to make contact with you (within the terms depending on your state).
The following court hearing will allow the judge to decide whether the temporary protective order should be made permanent (which generally is a further 5 years).
Get Them Served
As soon as you’ve got the temporary restraining order, hearing notice and attached paperwork completed – they’ll need to be legally and officially served.
You’re not allowed to serve the papers yourself, so you’ll need to find somebody that will.
If you don’t want to pay a fee, you could try and get somebody neutral to do so (unlikely to be a family member, but this depends on the terms of the protective order).
If you don’t mind paying a fee, you can ask the Sheriff’s department to do it for you, or you can opt for a private party to do it.
The Basics Of The Protective Order
A protective order law will clearly establish who can file such an order along with what protections they may have and how the enforcement of the order will play out.
Even though states will differ on their rules, you can expect a judge to have the ability to order the following restrictions:
- The abuser must stop abusing you
- The abuser must stay away from your workplace, your house, your school (if applicable) and other frequented places such as your children’s school
- The abuser must stop all contact including but not limited to emails, calls, texts, visits, social media, fax, third party contact, letter or deliveries
- The abuser may have to pay costs for child support, continued housing payments such as a mortgage and rent and other significant joint costs
- The abuser may have to relinquish things such as their car for exclusive use to the victim
- The abuser may have to pay for medical bills if they are incurred to the victim
- The abuser might be forced to hand over all of their firearms and ammunition to the court or law enforcement
- The abuser might be required to attend treatments such as alcoholics anonymous, narcotics anonymous, or a batterers program
- The abuser may be able to have contact in controlled settings with their children, under the court’s discretion
What Happens If Someone Violates Their Restraining Order?
If you have filed a protective order against someone, whether that’s a permanent or temporary restraining order that is active – the alleged abuser cannot make contact with you under the terms of the order.
If they ignore the order and violate its terms, the victim can contact law enforcement. Generally, the police will arrive at the scene and ask some questions about the situation.
They can try to enforce the terms of the order by demanding the person leaves the area or they might decide to arrest the person.
It’s easier for law enforcement to do something about the situation if there are specific terms in the order, such as a ban on firearms.
If the person has a weapon on them, the police can quickly establish this and arrest them for breach of the terms.
These scenarios are why it is incredibly important to keep a record of all messages or incidents that occur with the party you’ve filed the order against.
If the person has breached their order in person and you have no evidence, you should document exactly what happened and when it happened.
The more information you have, the better it is for the courts, rather than just making claims like “the person is following me”.
You should always keep detailed records and copies of any medical bill that you’ve incurred within the time of the protective order.
Make sure you take photographs of any injuries that you sustain too. Additionally, if you have called for law enforcement to assist, you can get copies of their police reports – all of these documents can act as evidence in court and can help your case.
If the case goes to court and you’re providing all of this evidence, you may also wish to contact potential witnesses or character witnesses that can testify in court on your behalf.
They will likely be asked to sign an affidavit too.
To summarize such a large topic, it’s important that we get the basics. The requirements for a restraining order will be different depending on your state but you can expect some basics, as outlined above.
However, we’ll use California as a summary example. There are 4 types of restraining order in California:
1. Domestic Violence. Requirements
- Someone abused you
- You have or had a close relationship
2. Elder Adult Abuse. Requirements
- You’re 65+
- You have some type of disability meaning you can’t protect yourself
- You’re a victim of abuse (physical, financial, neglect or deprivation)
3. Civil Harassment. Requirements
- You’re being abused or harassed
- The person is not close to you, such as neighbor
4. Workplace Violence. Requirements
- You’re an employer
- You’re requesting an order to protect your employee at work
If you’re ever in a situation where you need legal protection or help, consider contacting law enforcement or an experienced attorney.