What Is a Restraining Order? How Do You Get One? What Must You Show to Have One Issued?
You’ve been threatened by another person—maybe an ex-spouse or partner, or perhaps a disgruntled former employee. You have legitimate concerns that the person making the threats will actually engage in violence toward you. You may be afraid to leave your home, go to work, go to church, or participate in the normal activities of daily life. What are your legal options?
What Can a Restraining Order Do?
Fortunately, courts have the power to issue restraining orders that prohibit persons named in the order from engaging in certain types of activities, including:
- Coming within a certain distance of you or your property
- Coming to your home, your place of employment, or other locations where you are known to be
- Contacting you by phone, email, text message, note, or letter
- Sending you gifts
- Interfering with your custody of minor children
It’s important to understand, though, that while the court can issue a protective order, enforcement of the terms of the order requires the services of law enforcement officers.
How Do You Get a Restraining Order?
In order to have any legal effect, a restraining order must be signed and issued by a judge. To obtain a restraining order, you must file an application with the courts. Your application will identify you as the petitioner or plaintiff and the person threatening you as the respondent/defendant. In your application, you must provide the court with evidence supporting your fears or concerns.
If the judge determines, based on the information contained in your application, that there’s a reasonable likelihood of imminent violence or harm, the judge has the authority to issue a temporary order limiting the defendant’s access to you. Though laws differ from state to state, it’s common for a judge to issue a temporary restraining order without notice to the defendant if the fear of harm warrants that. Whether or not a temporary order is issued, the court will schedule a hearing to take testimony and evidence from all parties involved, and will make a more permanent decision on the request for a restraining order after that proceeding.
What Must You Show to Get a Restraining Order?
To get the court to grant your request for a restraining order, you must prove to the court that, without the restraining order in place, you are in reasonable danger of imminent harm. You must prove your allegations by a “preponderance of the evidence.” That means that the judge must conclude, after hearing testimony and evidence from both sides, that your allegations are more believable than the defendant’s assertions. This standard of proof is significantly less than the criminal burden of proof, which requires proof beyond a reasonable doubt.
At the hearing, all types of evidence are admissible, subject to the rules of evidence in your jurisdiction, and may include eyewitness testimony, your personal testimony, and documentary evidence, such as letters, emails, text messages, recorded phone calls, and phone records.
If you’re threatened by another person, whether an ex-partner or spouse or anyone else, you can ask the court to issue a restraining order limiting that person’s contact with and access to you. To secure a restraining order, you must file a petition with the court and submit evidence demonstrating to the court that, without the restraining order, you are at risk of imminent bodily harm. Where the circumstances warrant, the court has the power to issue an immediate temporary restraining order, often without notice to the defendant. However, the court will always hold a hearing to allow both sides to provide evidence regarding the necessity of a more permanent order.