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State courts issue restraining orders, also known as orders of protection. Their purpose is to keep an individual from harming another by ordering their adherence to a series of requirements. While these won't necessarily stop someone from stalking or hurting someone else, they will allow the victim to notify law enforcement of the order's violation if one takes place.
An individual who violates an order can face arrest, fines and even jail time. There are several types of protection orders: emergency protection orders, final protection orders and restraining orders. But these terms are interchangeable, depending on the state.
The person requesting the restraining order has the power to have it dismissed or dropped, and the defendant may also request a lifting of the order. Once an individual files a request with the court to drop the order, the court will study the circumstances of the case before making a decision.
Domestic violence, also known as intimate partner violence, describes abusive behaviors in an intimate relationship. It can happen to anyone of any age, education level, gender, race, sexuality or financial status. Conversely, anyone can be an abuser or perpetrator of domestic violence. These behaviors physically harm, intimidate, manipulate or otherwise force people to do things they don't want to do through violence or threats. Multiple forms of abuse can occur at the same time in a relationship.
According to the National Domestic Violence Hotline, protection or restraining orders encompass a broad number of court orders or injunctions issued to protect members of families and children against acts of violence. A variety of people close to the victim can commit domestic abuse, including, but not limited to, a spouse or a former spouse, a co-parent, or a cohabitant or former cohabitant. Domestic abuse applies to behavior patterns that one person uses over another to gain control and power. These behaviors may include, but are not limited to:
When a violent situation occurs, the victim or law enforcement often requests, or even requires, that the alleged abuser leave the residence immediately. In the instance of an arrest, some states will give an emergency protection order (EPO) or domestic abuse restraining order to the victim. This allows them a limited period of time – from three to seven days – to file for a longer-term order.
Judges generally grant EPOs in domestic violence cases. They do not have to notify the abuser of the request, but someone – usually a law enforcement officer – will serve them with the order.
Protection orders exist in all 50 states but different locations may refer to these by different names. For example, Illinois, Texas and New York call them orders of protection or protection orders. California uses the term protection order interchangeably with restraining order, and Florida refers to protection orders as injunction for protection against domestic violence.
These orders are much like EPOs, but longer in duration, usually from one to five years, but can last a lifetime. Victims can ask the court to renew them if they still feel threatened when the term expires.
Protection orders have different provisions depending on the circumstances. These may include:
Depending on the state, a restraining order and protection order can be one and the same, but a restraining order can also have its own definition. It can be part of a civil or family law case and it can require that a party does or doesn't do specific things. While it is not a domestic violence restraining order per se, the act of domestic violence may be a factor.
A victim may request a restraining order "ex parte," meaning they ask the court to grant the order without any notification to the defendant of the court date. If the court approves an ex parte order, the opposing party will have the opportunity to present their side of the story at a later court hearing date.
Protection or restraining orders protect various individuals, including spouses, significant others, roommates, children and other family members. The same rules apply to all individuals listed in a restraining order, even if the abuser directed their abuse at only one specific person. An order can even protect pets, depending on the state of issuance.
Visitation and custody orders are sometimes possible for the children of the victim and abuser. They are typically temporary, and the court can modify them depending on changing circumstances of a situation. Those seeking an order must file the required documents with their local court and present evidence to the court as required by local rules.
Dismissal, removal or lifting of the protection or restraining order is possible, but the person requesting it must follow specific procedures to prove they are not violating the order. Since the court issues the order, the court must dismiss it before the parties try to initiate contact. Most restraining orders have a time limit; when it passes, the order expires if the party initially requesting it does not ask for a renewal or extension.
However, if there is no expiration date, or if an individual wishes to drop the order before that date, they can file a motion with the court with the names of the individuals, the date of the original order and the reasons for requesting that the order be lifted.
The reasons for dropping the order should communicate that both parties want contact with each other. It should also state that the victim agrees to the removal of the order and that no one coerced them into making that decision. The court will consider the evidence presented in a hearing to decide whether to grant or deny the request.
When someone requests the dismissal of a protective order, they must present a number of documents to the court, beginning with the motion itself. Several states have court forms for filing a motion available for download and there may be an associated filing fee. However, this will depend on the jurisdiction – some do not charge filing fees for protective orders and additional documents.
When filing a motion for dismissal of a restraining order, the court must see evidence to help it determine if removal of the order is a reasonable request. This depends on the circumstance of the case, but the evidence can include:
Either party can request an order of dismissal. If the order's target (the abuser) requests it, that person may have to prove that the victim had no evidence to request the order in the first place or they may have to convince the court that the violent activity preceding the order will not occur again. They may prove this by showing that they have signed up for counseling or anger management courses.
If the victim (the petitioner) seeks to dismiss the order, they may need to show that the circumstances that caused them to get the order in the first place no longer exist. For example, if the two parties have reconciled through counseling, that may provide a judge with proof that the circumstances that led to the order are no longer present.
A person that seeks to dismiss a restraining order should first consult with an attorney. Dismissing the order may lead to additional domestic violence in the future and remove the possibility of arrest for the violator. Dropping the restraining order may also require dismissing all criminal complaints against the violator, which is sometimes necessary when explaining why there is no longer a need for the order. An attorney will discuss these matters with the victim thoroughly before giving their recommendation on how to proceed.
Depending on the state in which someone wishes to dismiss a restraining order, the court may require the petitioner to meet with a state worker assigned to their case. Some workers will have the victims give their reasons for dropping the order and may require them to attend counseling or have additional meetings if children are involved. The idea behind meeting with a state worker is to ensure that the person requesting lifting the order is not doing so under coercion or duress from the defendant.
The forms for lifting an order differ from state to state. The documents for lifting an order usually include requests for specific names, dates and reasons for dissolving the restraining order. They may also require a signature before a notary. Several copies may be necessary for the court clerk to file the dissolution.
Violating a restraining order can lead to severe consequences and penalties. Even if both parties change their minds, wish to reconcile and mutually agree to contact, they may be in violation of the order while it is still in effect. No contact should occur until after the court officially lifts the order. Some consequences for a restraining order violation include:
Depending on the state, each time an unlawful contact occurs, the court may see it as a separate violation of the order, resulting in separate charges. For example, if an alleged abuser sends a victim three different emails, a court can treat each of these as a separate incident. As such, the defendant can face three violations of the restraining order. Penalties are also possible for the person who initiates contact and makes an attempt to reach the defendant in violation of the order.
When a party violates an order, the opposing party must present evidence of that violation. The court will then evaluate that supporting evidence to determine if a violation took place.