Orders of Protection and Restraining Orders
Orders of protection and restraining orders are both orders issued by a court against a person who has been accused of stalking, harassing, or threatening violence against another person as a means to keep the other party away from the alleged victim. Sometimes they can also be issued as a preventative measure before any act has taken place.
An order of protection is a kind of restraining order issued either by a criminal court or by a family court and is most often issued to protect victims of domestic violence from further abuse. Usually, orders of protection are issued when both parties are related to one another or are domestic partners. A restraining order can impose similar restrictions as an order of protection but may be issued in a civil matter or in instances in which the parties are not related.
A restraining order or protective order can include any or all of the following orders:
- Not to contact the alleged victim in any way, including by telephone, text, or through social media
- To stay away from the alleged victim – usually this means staying at least a specific distance (such as 300 yards) from the alleged victim, their home and/or their place of work
- To give up or release into police custody any weapons or firearms in possession of the accused person
- Requiring the accused to complete a domestic violence or other training program
In most states, restraining orders or orders of protection may only be issued against one individual. Those who feel they need a restraining order or order of protection from more than one person will need to file a petition with the court for each individual they are seeking to limit contact from.
Temporary vs. Permanent Orders
Orders of protection and restraining orders can be issued on a temporary or a permanent basis. Usually, to get a permanent order issued, a court hearing must be conducted. But if there is an emergency situation or an immediate danger, the court may conduct a modified hearing and issue a temporary order for a limited time until a full hearing can be conducted.
Restraining orders and orders of protection do not go into effect until the order has been properly served on the other party.
Even “permanent” restraining orders or orders of protection will have some limits; for example, in some jurisdictions they are limited to one year, following which the alleged victim my file for an extension of the order.
What Happens if the Order of Protection is Violated?
Although orders of protection may not carry criminal penalties themselves, especially those issued by a family court, as opposed to a criminal court, violation of an order of protection is a criminal offense in all instances.
As a result, violation of an order of protection or restraining order can lead to penalties including heavy fines and probation, or time in jail. Often, violation of an order of protection or restraining order results in the immediate arrest of the party who violated the order. However, there are defenses to the charge of violating a restraining order or order of protection, including that the accused was unaware of the order or that it had not been properly served.
The circumstances of the violation will determine the severity of the penalty. For example, if the restraining order is violated during the commission of another crime, such as an assault, the violation may be considered a felony and carry a longer jail sentence, separate and apart from any jail sentence imposed for the criminal activity.
It is important to note that in some states, either party may be found guilty of violating a restraining order. For example, if, during the course of a divorce, the wife obtains a restraining order or order of protection against the husband which prohibits all contact, and then the wife calls or texts the husband, that contact by the wife could be considered a violation of the order of protection. In other jurisdictions, even if the accused was in contact with the alleged victim at their invitation, the accused may be considered to have violated the order.
To be convicted of violating a protective order, it must be proven that the order existed, and that the violation took place. It may also require showing that the defendant was aware of both the protective order and its specific terms.
A restraining order or protective order is a part of the defendant’s criminal record and will show up on a background check.
What happens if the underlying case is dismissed?
Many times, restraining orders or orders of protection are issued before or during another court proceeding, such as a divorce action or a criminal prosecution for assault or harassment. Often, the disposition of the underlying case will include a disposition of the restraining or protective order. For example, if there is a conviction, the sentence will usually include the extension of the protective order at least through the jail and probation period.
But what happens to the restraining order if the underlying case against the defendant is dismissed? The answer depends on the type of order and the state in which the order has been issued. In some states, the restraining or protective order is automatically dismissed when the underlying case is dismissed. In other circumstances, a separate request to dismiss the restraining or protective order must be made.
If you have a legal need pertaining to a protective or restraining order, post your question on our site to find a lawyer who can help.
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