Restraining Orders vs Orders Of Protection
Victims of domestic violence have several options available when they want to take action, from criminal and civil retraining or protection orders. Of course, these orders on their own do not stop someone who is intent on causing you further harm but in most circumstances, they are very effective. The victim can call the police and have the abuser arrested if the order has been violated. Read on to learn more about the different kinds of protection orders that are available to you.
Different Types of Orders
There are three principal options available to you when you have been the victim of domestic violence. We will also cover what occurs when an order has been violated and how orders are enforced when they cross state boundaries.
Emergency Protection Orders
In many states when the police have been called out to a domestic violence situation, one of the individuals is requested or told to leave the home. Frequently, this is the perpetrator of the abuse/ However, sometimes, the police may be unsure of who the aggressor is. Roughly a third of states say the police are authorized or required to remove firearms when they arrive on the scene where the domestic violence incident took place.
In some states the police can offer the victim what is known as an EPO (Emergency Protection Order.) It a very short-term order for a limited time such as 3 to 7 days giving the victim the window of opportunity to request a longer term court order of protection for a longer period of time.
Every state and the District of Columbia have statutes offering some type of protection order. But not every state uses the same names or terms. New York, Illinois and Texas know them as protection orders or orders of protection. In California, the same thing is referred to as a restraining order. An injunction for protection against domestic violence is what it is called in Florida.
An EPO is different than a protection order as it is longer term, usually lasting from one year to five years and in certain circumstances, perhaps a lifetime. A victim may renew the order when the old one has expired if they still feel threatened by the behavior and words of the abuser.
A protection order may include (but are not limited to) the following details:
- An order may have a counseling provision whereby the abuser is ordered to attend classes such as anger management or batterer’s intervention.
- There may be a firearms provision where the abuser must surrender any and all guns in their possession and in roughly 66% of the states it also prevents the abuser from purchasing a further firearm.
- When the abuser is obliged to leave the home that they share with the victim, this is known as a move out provision.
- A stay away provision requires the abuser to keep a certain distance from the victim’s work, school or car. The stay away amount can vary greatly but the minimum is usually at least 100 yards or 1000 feet.
- Permitting the abuser to have peaceful communications with the victim for limited reasons only is known as a peaceful contact provision. This also covers when a child or children’s care needs to be discussed and when the child or children are being transported for visitation purposes.
- Conversely, a no-contact provision means the abuser cannot, talk, call, stalk, email, hit, attack, disturb or harass the victim of domestic crime.
Protection orders may include other family members, roommates, children or the current romantic partners of the victim. This means the same rules as above apply to other individuals who have been listed, even when they were not the direct cause of the abuse the victim had to endure. There are also some states where this protection extends to pets as abusers have sadly been known to torture pets as acts of revenge.
In some state’s custody and visitation of the children are decided with the order (in cases where the abuser and the victim were both involved in the lives of the kids). In most cases, these orders are temporary in nature and can be modified as part of the divorce process or future family court cases.
In order to obtain a protection order, the appropriate paperwork must be filed with your local court. They will follow the state procedures and law so you may present evidence at your hearing and of course to serve the abuser. The police are sometimes available to serve the papers on your behalf.
A restraining order requires the parties named in a lawsuit to do certain things or not to do them. It could be part of a family law case (perhaps divorce) or a matter for the civil courts. Although this is not identical to a domestic violence restraining order, domestic violence is sometimes a factor in a family law case.
It may be the case orders are requested what is known as “ex parte” so that only one party asks the court to do a particular action without notice to the opponent, then the other party is permitted a hearing so their side of the story may be heard. As there are differences in restraining orders on a state by state basis. It is of great importance to consult with an attorney who is familiar with the law in the area you reside. If a criminal court case is pending, the district may or order (from the judge) a protection order for the victim of the crime.
Violation of Protective Orders
There are three ways a violation of protective orders may be handled:
- A felony charge is usually reserved for serious or repeat violations.
- A misdemeanor is often reserved for the same circumstances for serious or repeat violations.
- Some violations are considered not just as a new domestic violence charge but also considered as contempt of court. Though California have found it puts the defendant in double jeopardy. That said, in many states it is police procedure to automatically arrest these violators. Put another way, if you have a restraining order in hand, and your abuser shows up and tries to contact you—just dial 911 and tell the police you have a restraining order, and the cops will show up quickly and will ask no questions and simply arrest your abuser.
Order Protection Enforcement in Different States
Victims of domestic violence often move to keep themselves safe from someone who has abused them in the past. The federal law that comes into play here is the Full Faith & Credit Clause of the Constitution makes a requirement for valid protection orders to be enforced in all US territories and every state as well as the District of Columbia. This means if an abuser stalks the victim in the victim’s new state of residence, the police have an obligation to uphold the protection order from the previous state.
Obtain Legal Advice With Domestic Violence Protection Orders
No-one should go through the horrors of domestic violence. Contact law enforcement without delay if your situation is becoming or is dangerous to you, your child or children. When you consider a domestic violence restraining order – it is a good idea to consult with an attorney who specializes in these issues and who can answer any questions you have, who can advocate alongside you in court and complete correct paperwork for you as well as filing it with the right people.
“Domestic Violence: Orders of Protection and Restraining Orders.” Findlaw, family.findlaw.com/domestic-violence/domestic-violence-orders-of-protection-and-restraining-orders.html.
Contact our Domestic Violence Attorneys in Scottsdale
Our domestic violence attorneys in Scottsdale can help with restraining orders and orders of protection. We will ensure thorough preparation of your restraining order or order of protection, or defense from them, and help you navigate the legal issues that inevitably arise.
*This information is not intended to be used as legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]