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Restraining Orders 101

Restraining orders can help you end harassment and stalking. If the restraining order is violated and there is proof that the violation happened, the courts will punish the offender harder and harder until they finally stop.

The laws for restraining orders, protective orders, and peace bonds vary depending on what state/province you are in.  In general, the court can order your abuser:

  • Not to harass you.

  • Not to contact you.

  • Not to visit certain places such as your home, school, workplace, etc.

  • Not to have a gun. They will need to store it or sell it.

Many abusers will push the boundaries and break the restraining order (e.g. they’ve learned that their actions rarely have consequences). If the infraction is minor (e.g. they send you a text or email), the police may not necessarily do anything about it. However, it is a good idea to document the infraction. If the breaches of the restraining order are severe enough (e.g. a pattern of repeatedly ignoring the restraining order), you can take your case to a judge if the police do not do anything. A judge can hold the perpetrator responsible and impose penalties on the perpetrator (fines, jail time, etc.).

If you anticipate future legal action with the restrained person (e.g. a divorce and an ensuing custody battle), a restraining order can help sway the judge in your favor as there is a strong chance that your abuser will violate the restraining order and make themselves look bad (it is proof of their harassment and malice). Judges really do not like people who disobey court orders.

Some minor notes about restraining orders:

  • Restraining orders usually have a time limit and expire. Before it expires, you should apply to have the restraining order renewed.

  • If you do not want your abuser to know your address, do some extra research on how to use a different address for the restraining order.

  • For the court hearing, you will be in the same room as your abuser.  Before the court hearing, you will probably wait in a different room than your abuser.  The courts have thought about the safety of everybody involved and will not let people bring weapons into the courthouse.

  • It’s a good idea to have a copy of the restraining order on you (e.g. on your smartphone).

When you first apply for a restraining order, you will typically be granted a temporary emergency restraining order. Judges do not want somebody to be seriously hurt if a restraining order isn’t granted right away or if they mistakenly reject a restraining order1. Then there will be a hearing scheduled soon after (e.g. maybe 2 weeks) the temporary order is granted.  The decision to grant or deny a restraining order usually comes down to the balance between two things:

  1. The threat of the applicant being harmed.
  2. The consequences for the person being restrained.  Usually the consequences are low because it is not a criminal conviction.  There are usually very few consequences for the person being restrained (unless they break it).  It is possible for a husband to be prevented from going to his home and from taking the household’s car that his (battered) wife needs.
    • Judges do not like people who abuse the system to harass others.  They may deny a restraining order if they believe that the applicant is abusing the system.  You do not want to come across as somebody trying to harass the person being restrained.  Do not engage in name calling or harassment in front of the judge.

The level of evidence needed to get a restraining order is low.  It is possible to get a restraining order based on a story alone.  If the judge does not grant your restraining order, you can try again. Some people do end up in the news dead/injured after a judge rejected their request for a restraining order. If you are unlucky and run into one of those judges, you can try again.

Do not assume that the judge will actually review your evidence2 because some judges are lazy. Draw the judge’s attention to key pieces of evidence. You can ask them if they have reviewed the evidence.  Or, you can ask them politely to take a small amount of time out of their day to review the most important evidence.  Make it easy for them.  If you have audio recordings, transcribe the key parts so that the judge doesn’t have to figure out how to use a computer.

Some resources:

If there may be a custody battle in the future, get legal help

Family courts may not operate the way that you think they work.  They often put child into abusive situations due to the mistaken belief that children are better off if they are raised by both their biological father and mother.  Abusers often use children as pawns to control/hurt/harass their ex.  Family courts will often grant abusers some degree of custody if they simply pretend like they are trying to be a good parent to the child.

If there is a custody battle, the abuser’s lawyer may argue that you engaged in parental alienation.  In other words, they may argue that you took steps to prevent your ex-partner from forming a relationship with their biological child.  Judges are often sensitive to allegations of parental alienation because divorcing couples often bicker, use their children as pawns, and try to get their children to hate their ex (e.g. by denying access to the other parent and brainwashing the kid).  To avoid picking the wrong side, a judge can give both parents unsupervised access to the child.  This practice is harmful when the caring parent is bullied into sending their child into the hands of an abuser.  In some cases, a judge may show slight favoritism to one side if they believe that they have been victimized by parental alienation.  If you take steps to deny the other parent access to the child, it can look like parental alienation.  You may want to take steps to avoid the appearance of parental alienation while also keeping your child safe.

If you get a restraining order against your ex and flee with your children, there is a possibility that you may lose custody of your children.  The judge may have the opinion that your abuser may not necessarily abuse your child even though they have abused you or other children.  If child protective services are involved, the CPS agency will often try to put children back with their abuser even if there is a history of child abuse.  CPS agencies often have fantasies about rehabilitating abusers (rehabilitation is extremely rare) and typically have a mandate of reuniting families.  The judge may wrongly assume that the CPS agency is competent and that the CPS case worker was diligent (they are often overworked, poorly trained, and don’t investigate enough).  If there is child abuse occurring, go to the police before CPS.  If you have to deal with CPS, document your interactions with them.  If the CPS case worker tells you that the child should be taken away from their abuser, get a record of them saying so as they may be overruled by their supervisor.  Get legal help if you flee with your children so that you don’t lose custody of your children later on.

Domestic violence shelters may be able to give you some advice (you don’t have to stay there) if you cannot afford a lawyer.

Footnotes

1http://www.mediaradar.org/docs/RADARsignatureReport-ErringOnTheSideOfHiddenHarm.pdf – The paper “Respecting Accuracy in Domestic Abuse Reporting” talks about how judges err on the side of caution when granting protective orders.

2https://www.reddit.com/r/JUSTNOMIL/comments/6rhwlh/mommy_fearest_and_the_no_good_awful_judge/ – This Reddit user talks about how the judge did not review the evidence. After getting the judge to do so, the judge ruled in her favor.

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