The actual process for obtaining a restraining order can vary greatly from jurisdiction to jurisdiction, but there are some common rules and procedures to follow. There are essentially two different schools of thought when it comes to the nature and scope of a typical restraining order. One is considered a protection against harassment, while the other is considered a protection order. The differences between the two can be confusing, so many experts suggest consulting a lawyer before requesting a restraining order.
If you believe you are in imminent danger of personal injury from someone you know, the first step might be to call 911 or whatever the emergency number is for local law enforcement. The responding officer can guide you through the process of obtaining a restraining order, although there might be a time lapse before the order can be legally executed. If you can get to a domestic violence shelter, a lawyer there should also know the correct procedure for obtaining the order.
In general, obtaining a temporary restraining order begins with filing a complaint at a local court. The court clerk should provide you with some forms to fill out, which essentially provide the court with your full identification, contact information, and a detailed report of the incident or incidents that prompted you to take action. The clerk may also ask for any evidence supporting harassment, threats, or personal injury. We recommend bringing photographs of injuries, copies of threatening communications, or official reports on incidents. Make sure to provide as much contact information as possible about the offender.
After completing the required forms and providing the evidence to the clerk, a judge will review your petition for a restraining order as soon as his or her schedule allows. If the judge is convinced that a restraining order is immediately necessary, he or she will issue a temporary restraining order called an ex parte restraining order. This type of order is generally valid for a short period of time, usually about two weeks. The court should provide a hearing date at which the temporary restraining order could be extended for up to two years, depending on local laws.
Obtaining a restraining order from a judge is just the beginning of the process. A marshal or authorized deputy must serve a copy of the order on the offender before the terms can be legally enforced. If the offender were to return before the order has been properly served, the order may be considered invalid. However, law enforcement officers often wait at the complainant’s home to execute the order. Otherwise, the marshal will deliver the order to the contact address provided in the forms. The complainant will be contacted once the order has been properly served.
A restraining order is actually a legal matter between the judge and the offender, not between the two parties themselves. If the offender violates, even minimally, the terms of the order, the complainant has the right to seek legal protection. Typically, the offender is prohibited from communicating with the complainant or appearing within a specified distance from the complainant’s home or workplace. If you have other family members who might feel threatened by the offender, you may need to pursue a separate restraining order for each of them.
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