A restraining order is just a piece of paper
IT WILL NOT PROTECT YOU.
IT WILL NOT SAVE YOU.
DO NOT LIE TO THE JUDGE.
THE JUDGE IS THERE TO HELP YOU.
It can be issued against a family member, for example: husband, ex-husband, father of your child, a household member, anyone with whom you live with or used to live with, or against someone you have recently dated.
You do not have to be married to the person to get a restraining order. However, you must know where the person lives or works.
How to get a restraining order
An emergency protection order is an order that police can obtain from the court to provide immediate protection to an abused family member. The application can be made by telephone or in person at any hour of the day or night. This order can say that an abusive family member must temporarily leave the home immediately, cannot contact other family members, cannot come near their home, workplace or school and must give up all guns, knives and other weapons. The fact that an abuser can be ordered to leave the home might be very beneficial to you and your children. The fact that you can stay in your home may help stabilize your situation before you have to take any further steps, such as applying for custody. The order can allow for the police to accompany a person to the residence to collect personal belongings, and finally include any other term that is appropriate or necessary in the circumstances. The order can be made without notice against the person that the order is sought after. If the police have been called to an incident of family violence, they will make the decision as to whether to make an application for an emergency protection order or not. In making this decision the police will assess the situation, the degree of risk involved and whether or not a criminal offence has been committed. If a criminal offence has been committed the police can charge the offender instead of applying for an emergency protection order. The police have two options in this regard. The offender can be charged at the scene of the incident and asked to enter into a promise to appear at court at a given date and time, with the condition that in the intervening period they will not go near or contact the person who has complained of abuse. Alternatively, the offender can be taken before a justice immediately, THEN the police will request conditions of no contact as part of the release terms. If the police decide that the situation does not need an emergency protection order, you can apply for the order yourself, but you can only apply in person at court. You would have to attend at your court to make the request. This could only be done during regular court hours. If you are attending court, other options are to apply for an ex-parte restraining order. When the order is granted it will refer to the abuser as the respondent and to you as the claimant.
A Protection Restraining Order (EPRO) can be given from the officer at the scene. This form might be called something else in a different city. The EPRO is temporary, and only a police officer with the approval of a judge, can obtain this order. Since you need an officer’s assistance to get an EPRO, it is important to describe the batterers actions and the basis of your fears. EPRO’s are available 24 hours a day good up to 7 days and can include orders for custody and residence exclusion. To get a more permanent order, you must go to Supreme Court to file for a civil restraining order.
A restraining order tells the person who may be hurting you to stop hitting, threatening, or harming you in any way. It can also order the person to stay away from you, to move out of your home, or to stop coming to your home. It can also give you temporary custody of your children, though it cannot be used for only this purpose. The person can be arrested if he/she threatens or physically hurts you, contacts you or comes near you when the restraining order says he/she is not allowed to do so. The defendant is prohibited from possessing or purchasing a firearm and the defendant concealed handgun permit is suspended. Please note: The word “partner” is to indicate the person who may be hurting you. The word “partner” can mean your current or former spouse, boyfriend or girlfriend; a relative; the father of your child; the person with whom you now or used to live with; or someone you have recently dated.
No. You can get a restraining order by yourself ~ an attorney is not essential. However, I recommend you contact an attorney to make sure your legal rights are protected. Also, the domestic violence programs may be able to answer some of your questions or help you fill out the necessary court forms. Many states, county, and city bar associations operate lawyer referral and information services. These programs can provide you with information on the legal system and refer you to a private attorney with expertise in family law. Check in your phone book under the name of the bar association or in the yellow pages under “lawyer referral services”. Depending on your income you may qualify for free or reduced cost legal services.
If you swear to the court that you are in immediate physical danger, the court may give you an ex-parte restraining order. An ex-parte restraining order is a temporary, emergency order that is made when only the requesting party (called an applicant or petitioner) is present to talk to the judge. If the judge agrees you are in immediate physical danger, the ex-parte order will be granted and a hearing scheduled within 14 days. This means the restraining order is in effect the day it is signed. Witnesses, including police officers can help your case. Physical evidence is very helpful but not essential. Your partner can be arrested if he/she disobeys the order after being served the court order by a marshal. If you are in the middle of a divorce, the court may want to hear from the other side before granting a restraining order.
There is no cost to file your application for a restraining order. The state pays for the marshal to serve (give the papers) to your partner.
You ask the court to issue a restraining order by following these steps. Note: If you file the restraining order, you are the applicant (or petitioner) and your partner is the respondent (or defendant). Step 1: Complete the proper forms. Forms are available from the clerk of the Superior Court, domestic violence programs and legal service offices. These forms must be signed in front of the court clerk or a notary public. Application for Relief from Abuse Affidavit If you are seeking temporary custody of your children, fill out an affidavit concerning children. This order needs to focus on your specific safety needs. Here you should request custody and visitation provisions. If you are worrying about disclosing your new address, fill out a Request for Nondisclosure of Location Information. Note: The police and your partner will receive a copy of your application and statement (affidavit). Step 2: Give the completed forms to the court clerk. The court clerk will then take the papers to a judge who will decide whether you should get an ex-parte restraining order. Sometimes the judge will want to ask you questions about the abuse before making a decision. The questioning will usually happen on the same day that you ask for the restraining order. The judge may decide that there is not enough evidence to show that you are in immediate danger, and, therefore, will not sign an ex-parte restraining order. However, you may still be able to get a restraining order after a hearing when your partner has been notified of the hearing date or is present at the hearing. If you believe you are still in danger, you may want to talk to a lawyer or to your local domestic violence origanization. Please make sure you do your home work on your attorney. I can’t stress enough how important that is to have someone you trust and can talk to. What should I do once I get the restraining order from the court? You have the right to be notified of the deposition of the case by the DA’s Office. If formal probation is granted, the Probation Department will send you a written notice advising you of the conviction. Step 3: Make note of the hearing date, get copies of the order and keep a copy with you at all times. After the judge signs the order, the clerk will set a hearing date some time within 14 days. Then, the clerk will give you two certified copies that show the order was officially granted by the court. Keep a certified copy with you at all times so you can show it to the police if you need help. The court sends copies to the police departments in the town where you live, where you work, and where the other person lives. (Make sure you follow up on this and that the paper work does not disappear) Step 4: Have the papers served on your partner. Quickly arrange to have a marshal notify your partner of the ex parte order (if any) and of the upcoming hearing. The marshal must serve these papers to your partner at least 5 days before the hearing date. You can get a list of marshals from the county clerk office, court service center, or from the judicial web site. Choose a marshal from the town in which your partner lives or works. Then call the marshal to arrange for the papers to be served. Give the marshal the original and one copy of the papers and a description or photo of your partner. If the judge has also ordered that your partner be removed from your home, you may want the marshal to help you. If the marshal will not help then contact your local police to help you. If the marshal cannot find your partner, your restraining order may end on the court date and you may need to fill out new forms and start over. However, you should still go to court on the day of the hearing and explain to the judge that the marshal could not find your partner. The judge may give you more time to have the papers served so that you do not have to do it all over again. Step 5: Make a copy of the marshal’s “return of service”. After the marshal serves the papers, he/she will give back to you the original papers with the “return of service”. That will tell you when and where the papers were served. Make a copy of the return of service and bring the papers with you to the court hearing. Step 6: What happens on the hearing date? The judge will decide to grant or extend the restraining order. If the judge does not grant the restraining order, try to find out why. There may be an error in your papers that you can correct. Notification of the Disposition of the Case: When it is time to present your case to the judge, go to the courtroom. When you hear your name, stand up and say “Ready”. Go to the front of the courtroom and stand behind one of the tables. Give the judge any written agreement to extend the order. Give the judge the original court papers. If the marshal did not file them with the court both you and your partner will have a chance to tell your side of the story. Get to the court at least 15 minutes early so you can ask the clerk what the procedure is in the courthouse. Many judges require both parties meet with a Family Services Officer before they can have a hearing. A Family Services Officer works for the court and will try to help you reach an agreement. Ask the clerk whether you should first report to Family Services or go to the courtroom. If you and the other person come to an agreement about extending the restraining order, write the agreement down. Both you and the other party must sign the agreement and then present it to the judge. If you do not come to an agreement, you will have a hearing before the judge.
You should call 911 immediately if there is a violation of your order. A knowing violation of the Protection Order is a mandatory arrest if the violation was for any of the prohibited or restrained behaviors listed on your order. Always be sure to have a certified copy of your protection order and a copy of the document that shows that the respondent was served (If he or she did not sign the order) so that the police can enforce the order. When the police get there show them your court order and proof of service. If you disagree with a police officer’s response to your situation, you can directly contact the commanding officer You should request assistance from a domestic violence advocacy agency in communicating your concerns to the law enforcement agency that is involved. The police are required to write an incident report for all domestic violence calls, even if the batterer has already left the scene when they arrive. The police are required to provide you with an information card with the report number and the officer’s name and badge number. Although it is best to make the report as soon as possible, you can also call the police hours after you have been abused, or even the next day, to have a report taken. Ask the police to take pictures of your injuries, bruises and damaged property and to have them remove any weapons used in the crime from the scene. Try to be as calm as you possibly can. You have the right to obtain a copy of the police report in which you are listed as a victim. The reports are available through the police agency that handled the case. The charge for the report can be as much as $20, depending on the agency. It is always a good idea to get a copy of any incident report documenting your batterers abuse against you. These police reports can be used as evidence of abuse in other court proceedings. as a restraining order or custody hearings. How long will the restraining order last The temporary order will be in place for 14 days but can be continued for longer periods of time if necessary (for example, if the respondent does not get served and you need to extend the order to allow more time for service). The full order is typically entered for one year but can be in place longer if you petition for a longer order AND there are facts that support having an order for longer than one year. The order can only be in place in one year increments if you have minor children in common. You also have the right to renew a protection order if you have ongoing concerns about the respondent committing acts of domestic violence. You must file for the renewal within three months of the orders expiration. How do I modify or terminate my existing protection order? Anytime during the life of your order you may ask the court to either modify the terms (to make them more or less restrictive) OR to terminate the order outright. The Protection Order Advocates are available to help you with this process. If you obtained your protection order from a court where there are no advocates, you can return to that court and request the paperwork to modify or terminate the order. If the judge extends the order, it can last for 180 days. Every state is different so please double check every thing that is on my web site. If you believe you will still be in danger at the end of the 180 days, you should apply to the court for another extension. To be on the safe side apply a month before the six months is up. If someone calls you about the case ask whom they represent. You have the right to speak with or refuse to speak with the batterers attorney or investigator. You also have the right not to talk with anyone from the Public Offender’s Office.
Many cases are settled prior to trial through a plea agreement. A plea agreement means the DA’s Office, the defense attorney, and the batterer agree upon the charge(s) and the conditions of the sentence. Charges may be reduced or dismissed during this process. You have the right to be notified by the DA’s Office of any plea agreement made in the case involving a violent felony. You can call the DA’s Office any time to ask for information regarding the batterer. You don’t need a lawyer to represent you – only the batterer faces charges. You are never obligated to go to court unless you are notified by the court. You have the right to attend any public court proceeding concerning the batterer.
A protective order will not order the abuser to stay 500 feet from your body!! A protective order is not a bullet proof vest or safety shield. You must remain careful and take precautions for you safety. A protective order does not interfere with court ordered visitation or custody determined by another court. Safety and seeking a Protection Order. Not every abuser responds to being served with a Protection Order the same way. Please consider these questions when thinking about your safety plan and when filing for an order. How do you think the respondent will react to being served the order? Do you feel like you will be in more danger if you file the order or that things will get worse? Is the respondent afraid of getting in trouble with the law or do they think they are “above the law” Have you ever left or sought help before? How did the respondent react? Has the respondent threatened that they will harm you if you ever seek help or call the police? Because the respondent must be served with your order to make it enforceable – would it be safer for the police to serve it? A Process server? Or having a friend or family member who is over the age of 18 serve it? Most orders are served by law enforcement at the respondent’s home but they can also be served at a workplace. If you have children, are there ways you can have the respondent served so that it does not occur in front of your children? Can my children be protected by the order? Minor children, whether they are in common with the respondent or not, can be included on the order. You can also restrain the respondent from going onto the ground of or being within 500 feet of the child(ren)s school or daycare. You may also ask the court to establish temporary custody of the children and prohibit the respondent from removing the children from the State where you live.
s a victim of a violent crime, you are entitled to reimbursement for medical expenses, lost wages and counseling for you and your children. The Victim Witness Assistance Center is available to assist you. They can direct you to emergency services including food, shelter, clothing, and transportation. They also offer follow up care including counseling, they arrange for someone to go to court with you and you might be entitled to restitution. I have said this before and I will say it again…VICTIMS OF CRIME DO NOT HAVE TO SUFFER ALONE.