Types of Orders of Protection
There are two types: 1) Full Stay Away and 2) A Do Not Harass also known as a Refrain From Order of Protection. The first order of protection means that there can be no communication whatsoever from the person whom the order is against ("restricted party") toward the person whom the order protects ("complaining witness" or "victim"). The second one means that the restricted party can have communication but cannot engage in any type of harrassment toward the protected party including stalking, menacing, forcible sexual contact, among other behaviors that are, for the most, part illegal in the first place. The order itself will specify all prohibited behaviors.
Source of the Orders of Protection
Orders of protection are given in both family and criminal court. In family court, there is often a petition in which the complaining witness asks the court for an order, or a judge can issue one at his or her own discretion throughout the course of a proceeding. In criminal court, the typical situation is that a person is arraigned on criminal charges, and the judge issues a temporary order of protection while the case is pending in court. The judge has the discretion to issue an order in both courts regardless of whether or not the complaining witness requests an order of protection.
Duration of Orders of Protection
There are two categories: 1) Temporary and 2) Permanent. A temporary order is usually in effect for the duration of the court proceeding. There is an expiration date at the bottom within approximately one year ahead. If a court proceeding is finished before the expiration date, the order still must be officially vacated by the judge before restricted behavior can resume. A permanent order of protection is the result of a court proceeding. In criminal, whether the charges are plead out as part of a plea bargain or the case goes to trial unsuccessfully, an order of protection may be a condition of sentence. In family, there is a hearing to determine if a permanent order of protection is warranted, or one can be issued as part of a settlement. In either court, a permanent order of protection is in effect for a specified number of years with an expiration date at the bottom. Orders are valid until the judge vacates them or the expiration date has lapsed.
How Do I Get an Order of Protection Vacated?
The most important thing to understand is that the complaining witness has no authority whatsoever to remove the order or to allow the restricted party to engage in prohibited behavior. The only way that probited conduct may resume is if the judge officially vacates the order of protection in court. Keep in mind that if there is a full stay away order of protection, and the parties are seen together (e.g. even riding in a car that gets pulled over), the restricted party is subject to arrest and criminal charges for contempt. If a complaining witness does not want an order of protection anymore, his or her recourse is to speak with the DA and defense attorney in criminal cases, or to speak with his or her own attorney (or the judge if he or she is not represented) in family cases. These individuals can speak with the judge regarding the preference of the complaining witness. However, the ultimate decision resides with the judge regardless of preference.
Read the Order of Protection Carefully to Be Certain
To be certain as to what conduct is prohibited, it is important to read the order of protection carefully or speak with an attorney if you are not sure. Often times, there are conditions and exceptions incorporated in the standard language of the order that are not the standard for every case.