Questions About Restraining OrdersRestraining Orders (or Orders of Protection) are court orders designed to stop harassing behavior. When used properly, orders of protection can help establish boundaries in a violent situation. To help you understand more about the issues that may come up with such orders, read the following questions and answers from the legal expert:
He won't leave. Should I file a restraining order? Melinda's Question: My husband is an alcoholic and refuses to leave until I go through with the divorce. I have a 7 month old baby. Should I file a restraining order to keep him away? Brette's Answer: You need to talk to your attorney about a restraining order. If you feel you are in danger, it is important to discuss it and to make sure you have a plan to stay safe when he is served. You should also have a conversation with your attorney about what kind of visitation would be appropriate. It may need to be contingent upon him entering a treatment program, or it could be supervised. Can I file a restraining order in the state I live in now? Tania's Question: My husband is an alcoholic and gets VERY violent when he is under the influence, which is every night. He kicked us out on New Years Eve and I was transported to a women's shelter with my daughter by the police. Five days later, I got a chance to move to where my family is. It is safe here, and I don't have to look over my shoulder because of the threats he has made to take her and make my life hell. I have been advised to do a domestic violence restraining order, as well as an emergency jurisdiction. But where do I file it? Brette's Answer: You should be able to file for a restraining order where you live now. Good luck. Can he get visitation if there's an order of protection against him? Jessica's Question: What would happen as far as visitation goes if my child's father has an order of protection (which both me and my child as well as the rest of my family are on). He also received two years probation for violating this order of protection. Would visitation be granted? Brette's Answer: If there is an order of protection directing your child's father to stay away from the child, visitation would not be allowed, unless a specific exception were made for supervised visitation. » Return to questions Can I add my unborn baby to the order of protection against my ex? Elizabeth's Question: I currently have a year order of protection against my husband and my mother in law. In the order I have sole custody of my son and he is also on the order as well. I'm almost 9 months pregnant with my daughter. Can I get my daughter on the Order of Protection as soon as she's born? Should I file for a divorce now or wait until the order of protection is over? And why did the judge allow supervised visitation of my son if he is listed on the order also? Brette's Answer: You can ask to add the baby to the order. You can seek divorce now. There's no reason wait. If the judge ordered supervised visitation it was to ensure there is parental contact in a safe environment. The judge must have felt supervised visitation was appropriate. Will I be able to keep temporary custody at our hearing? Misty's Question: My son's father has only spent 3 hours with my son in the eight years since he was born. He has threatened me many times to come and take my son from his school because he has 50/50 rights and I'll never see him again, "so I better work with him". This week I had to gain an emergency restraining order because he threatened to harm my son and me over the phone. The restraining order gives me temporary custody, but is that only effective until the court date? And if so, what are the chances that on the court date the judge will give me temporary sole custody so he cannot pick up my son from school and leave with him? Please, I beg of you, please help me understand my rights. Brette's Answer: The restraining order is generally renewed at each court date if it expires at the court date. You will likely be given temporary custody since courts like to maintain the status quo while the case is ongoing. The issue will be whether he claims he has wanted to see his son and you did not allow it. If he's truly made no effort and cannot prove he has, you needn't worry about a change in residential custody. » Return to questions Do I still have custody if the restraining order has expired? Tiffany's Question: When I filed a restraining order, it was issued for one year. At this time the order is expired. Is the custody that was established in that order still valid? Brette's Answer: You need to either get the order reissued or you need to get a separate custody order (which is what I would recommend so it will be permanent). Am I violating the custody order if I don't give him my address? Lisa's Question: I have a restraining order against my ex husband. He is currently in jail awaiting trial for shooting a gun at me and kidnapping me a gun point. I have sole custody of the kids, but the custody agreement awards him some rights like phone calls and also has the standard clause about notifying him if we move. My address has been undisclosed on the restraining order and we recently moved to a new house. Me ex is claiming that I'm in violation of the custody agreement for not giving him our new address. We live in the same city, and he can write them at the same PO Box, and call them on the same phone numbers. Am I in violation for not giving him our address? Brette's Answer: I don't think any court would find you in violation since you have two conflicting orders. Your safety must be the priority here. What can I do if he violates the restraining order? Rebecca's Question: We are going through a divorce where there are 2 small children and 2 businesses involved. In the restraining order the court gave me one business and him the other. He has tried to break into my home and has broke into my vehicle and stole all my keys. The deputies keep doing nothing even when he says "yes I did that". Now they have told him that everything the court issued me is still community property and as long as I am not home he can take it all. Is this the case or are they misinformed? Brette's Answer: If you have a written court order directing who has ownership of what, it is binding. Go back to divorce court on a violation. » Return to questions What happens if he violates the restraining order? Chasity's Question: If I have a restraining order against someone and they break it, what would happen to them? Brette's Answer: They could go to jail, it depends on the judge's take on the situation. Good luck. Should I ask for spousal support at the DVRO hearing? Lori's Question: I have a 3 yr DVRO against my ex. He took everything when I was first beaten: equipment, vehicles, tools, my clothes, money. I've been advised to go back before the Judge that issued the DVRO and explain ALL the contempt issues and ask to have the Restraining Order extended. If I go back to court for the DVRO violations, is there a form that I can submit to request spousal support and have THIS Judge make the decision. I have no money: I just went on state assistance. He has given me NO SUPPORT and will not unless " I drop the restraining order..." so basically, he's blackmailing me. What can I do? Brette's Answer: I can't speak to specific state procedures and forms. I think what you should do is contact your local domestic violence shelter. Even though you are not seeking shelter, they can offer you legal assistance, or refer you to an attorney who can help you pro bono. Another option is to find out if your area has a volunteer lawyers' program (call the bar association and ask). » Return to questions What if he doesn't show up for the hearing? Nicky's Question: I have a hearing this month for a restraining order. What happens if my husband does not show up at the hearing? Brette's Answer: If he was properly served, then you win and get the order. He got a restraining order to hurt me. Can I fight it? Gloria's Question: I left my husband because I felt that it wasn't a healthy situation for the kids due to all our arguing. He got the restraining order in retaliation to keep me from the kids. What is the best way to fight a restraining order that has been issued with no merit. Brette's Answer: Unfortunately, restraining orders are often issued when they shouldn't be, but courts believe it is better to provide more protection than is necessary than to deny someone the protection they need. If a temporary restraining order has been issued, there will need to be a hearing before it is made permanent. At this hearing you can explain your perspective on the situation. If the order has already been made permanent, you would need to be able to show that it is no longer needed. You need to see an attorney and show him or her all paperwork in the case to this point. If you are being denied visitation with your children, you may need to file a separate petition seeking visitation. Talk to your attorney about this. Good luck. I haven't called, but he still filed a restraining order. What can I do? Joyce's Question: We split up after two years together, and I'll admit that I did call him a lot after we broke up. I haven't called him for about a month now, but he still wants to get a restraining order. Is there anything I can do? Brette's Answer: Go to the hearing for the restraining order. Explain your side of things. If he claims you are still calling, ask him to produce phone records to prove it. » Return to questions Copyright WomansDivorce.com. All rights reserved. Related Articles: Brette Sember is a former family and matrimonial attorney and mediator, nationally recognized expert, and author of many books including The Divorce Organizer & Planner, No-Fight Divorce, and How To Parent With Your Ex. This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce Process / Children and Divorce/ Emotions and Divorce Divorce Home / Divorce Guide / State Resources / Divorce FAQS
|
For more information about Brette, see 
