Temporary and Final Restraining Order Procedure and Practice
If you are a victim of Domestic Violence, or you have had a restraining order entered against you, this guide will provide information as to the process of obtaining a temporary restraining order and the procedure of a final restraining order hearing.
How a Temporary Restraining Order is ObtainedA temporary restraining order (TRO) is an emergency protective order which is obtained with the purpose of preventing an abuser from contacting or coming near a victim. A TRO can be obtained by visiting the Family Division at the county courthouse in which the victim resides, or if it is outside of normal business hours for the Court, a TRO can be obtained at your local police station. When applying for a TRO, the victim will need to fill out several forms and will be interviewed as to the content of the forms and the reason the individual is seeking a TRO. Any Injuries or past history of abuse should be described here. This is a sworn statement and must contain accurate information.
If the TRO is issued, the police will serve it on the other party and confiscate all of his or her firearms.
A TRO is NOTa final restraining order (FRO). Instead, it lasts only until the date of the final hearing, which should be within 10 days of the date the TRO was issued.
Obtaining a Final Restraining OrderBefore a judge will issue an FRO (Final Restraining Order), a thorough hearing will be held in which the court will hear testimony, review evidence, and listen to witness testimony from both parties. Both parties will be able to present evidence supporting their position and in defense of the other party's position. Evidence can take many forms, such as medical records, police reports, and witness testimony. You will also have the opportunity to testify, but the other side gets to ask you questions during cross-examination. The Judge must evaluate all testimony and evidence presented and apply it to applicable statutes and case law which dictate whether an FRO will be granted.
To award a final restraining order, a judge must find that the accused party committed a certain act of violence, such as:
1) homicide; 2) assault; 3) terroristic threats; 4) kidnapping; 5) criminal restraint; 6) false imprisonment; 7) sexual assault; 8) criminal sexual contact; 9) lewdness; 10) criminal mischief; 11) burglary; 12) criminal; 13) trespass; 14) harassment; 15) stalking; 16) criminal coercion; 17) robbery; 18) cyber harassment; 19) contempt of a domestic violence order; 20) any other crime involving risk of death or serious bodily injury.
There also must be proven to be a certain relationship to between the parties. For example, your abuser must be: 1) Your current or former spouse; 2) Someone who currently lives in your house; 3) Someone who formerly lived in your house; 4) Someone you are dating or have dated; 5) The other parent of your child.
In addition there must be a proven prior history of domestic violence between the parties.
Finally, it must be proven that the alleged victim is in reasonable fear for their safety and a restraining order is necessary to ensure said safety.
if those four points are proven, the court may grant an FRO, which prohibits the offender from any contact or criminal offense against the victim. The offender must also have their finger prints taken and be registered in a nationwide registry for domestic violence offenders. The FRO is permanent and will not be removed barring exceptional circumstances.
As part of a restraining order, a judge can prohibit an abuser from contacting a victim and coming near his or her home or place of work. Judges can also order other protections, such as: 1) Temporary custody of minor children; 2) Financial support to cover rent or mortgage; 3) Mandatory therapy or counseling; 4) Temporary possession of real properly, like a car; 5) Prohibition on the abuser's ability to have a firearm.
A violation of a TRO or FRO is a criminal offense and the offender will be arrested and may serve jail time.
The consequences of a TRO and FRO are serious and should be approached with seriousness; it is a good idea to consult with an attorney experienced in this area of law to fully protect your rights.