Restraining Orders (also called Orders of Protection) are court orders which are meant help establish boundaries in a violent situation and stop the harassing behavior by an individual which is directed at another person. These orders impose limitations on the various actions or threatening conduct of the person they are filed against.
Some common issues which may be addressed in these orders are limiting (or ceasing) contact between the individuals, requiring an individual to vacate the family home, and establishing a visitation schedule so the minor children to see the other parent.
If you feel threatened by your spouse to the extent that you or the children could be in danger, you can file for an order of protection until things settle down. There is usually no cost to file and you can get the forms from your courthouse.
Once you have filled out and submitted the forms, a judge will generally issue the order within a couple of days. You need to be aware that are hearing is usually held to determine the validity of the claims and whether the person requesting the order wants to continue with the action.
The following FAQs can help you understand more about the issues that may come up with such orders:
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: You'll need to speak to your lawyer about getting an 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.
Josefina's Question: I have filed for custody of my two children but have not filed for divorce so my husband and I are still in the same house. The situation has become unbearable and the effect on the kids dramatic. He is irrational and constantly threatens my son to never talk to the judge about what he has done. Last night he came home and said I cannot take the children out of the house. I need to take my children from the house, but don't have an emergency custody order. It is Saturday. Can I leave the house with the kids and stay with family and file for an emergency order on Monday?
Brette's Answer: You can. Since there is no custody order in place you both have equal rights. It is best to file as soon as possible. If you believe you are in danger go to a domestic violence shelter and file for a protective order.
Linda's Question: If a restraining order is served, is there always a hearing to make it permanent? Or is there such a thing as filing a permanent restraining order from the start?
Brette's Answer: Domestic restraining orders are almost never permanent. Generally a temporary order is issued when a petition or complaint is filed. A hearing is held, allowing both parties the right to be heard, and then if the court determines it is necessary, another order will be issued, but it generally is only good for a certain period of time, such as six months or a year. There are situations of course in which an order can be issued that will never expire, but that is rare.
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 Year's 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. I have been advised to do a domestic violence protective 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.
Desiree's Question: I am considering filing a temporary restraining order per recommendation of my two daughter's therapist. Their father has presumed anger management issues and is always verbally abusing the children. The minor counsel on the case asked that we work with the therapist. What's your opinion for filing such an order?
Brette's Answer: If that is what the therapist advises, it sounds reasonable and something a court would be likely to order, if you can get the therapist to testify.
Norma's Question: I have a temporary restraining order for both my kids and I. I do not have custody of my kids yet. What if their father took one of my kids without permission?
Brette's Answer: If the restraining order directs him to stay away from your children then he is in violation. You should talk to your lawyer and may need to call the police.
Jessica's Question: What would happen as far as visitation goes if my child's father has an order of protection (which me and my child as well as the rest of my family are on). He also received two years of 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 was made for supervised visitation.
Rachael's Question: My ex was in jail but has been out for a while and not made any attempt to contact or pick the kids up for his visits. He is supposed to have visitation every other weekend. There is a no contact order on him so he can't personally contact me about visitation. Will I be contacted prior to him starting visitation up again?
Brette's Answer: Since there has been no visitation for some time, it would need to be arranged - when it would start, etc. So, yes, it is reasonable to expect someone to contact you to discuss it.
Melissa's Question: My ex-boyfriend wants to see our son but I have a restraining order against him for me, but not for our son. How do I handle this situation?
Brette's Answer: If you are willing for him to see your child, you need to make arrangements for him to pick him up or see him someplace other than your home. Ask a friend or relative to make the transfer. If you do not want him to see your child, you do not have to, unless there is a visitation order in place.
Maria's Question: I have supervised visitation with my son, but now my ex's wife has decided to seek a restraining order against me which includes my son. Would I be violation my the retraining order if I go see my son?
Brette's Answer: If the order directs you to stay away from your son then yes, you would violate it if you went to see him unless there is an exception in it for a supervised visit.
Kathleen's Question: My ex was granted supervised visitation rights two years ago, but never used them (no one was going to tell him when he could see his daughter). A year later a restraining order was put on him for threats and domestic violence. My daughter and I are both listed on the order. This past Christmas he started calling and wanting to talk to our daughter. Which order should I follow?
Brette's Answer: The restraining order would take precedence, if it is still in effect.
Natalie's Question: I have three daughters with my husband whom I have been separated from for over three years. Recently he was awarded 5 visitation sessions and then he will have partial custody of my children. But I have a protection from abuse order that I've that says he is to have no contact with our children. It also says that there should be no visitation. The judge even told my husband this past June that he couldn't contact any of us and that he didn't know how the custody master could rule over his order. How can the custody master allow him to have partial custody when an existing protection order from abuse is currently valid?
Brette's Answer: Your orders conflict and you'll need to return to court to get the conflicting orders resolved.
Brittany's Question: I'm 17. My parents are divorced and my mother got a restraining order on my father out of spite. My mother will do anything she can to keep my brother away from our father, only for the purpose of making my father mad and she has absolutely no reason to. I watch my brother every day until 11pm and go to school in the morning, which makes it very hard for me. I would like to allow him to go with our father so I can do my homework. But my mother says it's a court order, and he only gets to see him every other weekend. I want to know if my father is ONLY allowed to see him according to what it says on the parenting plan. What if I brought my brother to Walmart and we saw my father there, are we supposed to walk away? I don't understand at all.
Brette's Answer: Your father is only permitted to have parenting time with your brother at the times indicated. These are the only times he can be the person in charge of your brother. If you saw him at Walmart, that would not be visitation. It's not up to you to decide when your father can see your brother. If you think you shouldn't have to handle all the babysitting, you should talk that over with your mom and see if another solution can work.
Elizabeth's Question: I currently have a year order of protection against my husband and my mother in law. In the order I was given sole custody and my son 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.
Question: My sister recently left her abusive husband. He threatened to kill her and the boys if she left him, and we truly believe he is capable. The authorities and lawyers are involved but everyone is focused on her and the boys. I am worried he will harm her family to hurt her. That includes me and my two small children. I'm concerned we are vulnerable because we live close to one another. I don't want to make too big of a deal of our safety around her because we know she is the primary focus.
Brette's Reply: Discuss getting an order of protection with an attorney. If she has one, it could be expanded to include her family (at least in some states).
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. This week I had to gain an emergency restraining order because he threatened to harm my son and me over the phone. The 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.
Stacey's Question: I have a restraining order against my ex and the judge awarded me temporary custody. I don't know why but I agreed thru DYFS to let the kids stay with him for 2 weeks. I finally talked to caseworker and she said I have legal custody and I can bring them home anytime. I haven't seen my kids in a month even though I try every day. We have court next week because he violated the order twice. I'm scared to death the judge is going to say since the kids have been with him for a month they can stay with him. Can he get the temporary custody order overturned?
Brette: You need to get a lawyer. It sounds like custodial interference, but you will need to explain to the court why you didn’t make an effort to get them back.
M's Question: Three years ago I got a restraining order that protects both my daughter and I for five years. The judge also granted me sole legal and physical custody and granted my ex supervised visitation. He violated the order many times and was put in jail during the first year the order was in place but I have not heard from him since. Does the custody order expire when the restraining order expires or do I have sole custody until she is 18?
Brette's Answer: It depends on if they are separate orders and/or when the custody order expires. If it is all one order and it says it expires in 2 years, then it all expires then. You can file for a permanent order.
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).
Julia's Question: I have a restraining order against my son's father. I have sisters address as my mailing address and my ex is making a big deal about not having my home address. He has visitation, with drop off and pick up that is to be done at a police station. Do I have to give him my address?
Brette: No, you don't have to give him your address unless the court orders you to.
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 protective order and we recently moved to a new house. My 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.
Marian's Question: I divorced a year ago and I signed the paperwork to have the house put in his name. He is now telling me I did not sign the quit claim deed right and I need to sign it again. I signed the quit claim deed in front of his attorney when we divorced. He said he'd have me arrested and I would have to serve time in jail for not signing. There is a DVO on him due to his threats and I don't want to give him my address because I'm afraid of him. Can he have me arrested?
Brette's Answer: No he cannot have you arrested. I would suggest that you hire an attorney for this. If there is in fact paperwork (which sounds unlikely), it could be handled through an attorney you could hire. If you are afraid, you should not give out your address. If you cannot afford an attorney, you could have the mail sent to a friend.
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 broken 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.
Charity's Question: What would happen to someone if I have a restraining order against them and they break it?
Brette's Answer: They could go to jail; it depends on the judge's take on the situation. Good luck.
Sindy's Question: My husband has a stay away order for domestic violence. He was arrested a couple weeks ago. It is only a temporary order but he keeps texting me and threatening me saying he is going to kill my "boyfriend" (who exists only on his head). What can I do to make him stop? He also said he is going to follow me to work and everywhere.
Brette's Answer: Yes, ask that the order be modified to include no contact. Keep the texts as proof. If you feel you are in danger, do not hesitate to call the police.
Lori's Question: I have a 3 year 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 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.
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 if you aren't seeking shelter, they can offer you legal assistance, or refer you to a pro bono lawyer who can help you. Another option is to find out if your area has a volunteer lawyers' program (call the bar association and ask).
Lori's Question: I have a 12 month protection order on my husband and he is not allowed to cancel any auto insurance policies. I found out that he cancelled my insurance policy, what do I do now?
Brette's Answer: File a motion with the court for a violation of the order.
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.
Question: My husband took out a temporary DVRO for child custody. Then we came to an agreement on everything and he brought the children here and left them a week ago. What do we need to do to get the order dropped?
Brette's Answer: Since he asked for the order, he needs to ask to have it dropped or withdrawn. He needs to file with the court to do so.
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's the best way to fight an order that has been issued with no merit?
Brette's Answer: Unfortunately, these 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 a lawyer 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.
Ashley's Question: Can I still get a restraining order if we've been divorced for over 2 years and have a son together? He used to be physically and mentally abusive. He still continues to cause me anxiety over visitation of our son by being very hostile and possessive of our son, saying I can't see our son and that he'll take him away from me.
Brette's Answer: Yes you can get a restraining order if there is ongoing behavior
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 DVRO. What can I do if he files?
Brette's Answer: Go to the hearing for the order. Explain your side of things. If he claims you are still calling, ask him to produce phone records to prove it.