What is a Protective Order?
Ending an abusive relationship is statistically one of the most dangerous times for a survivor. Making sense of the legal system and understanding how to protect yourself after leaving is complicated and unpredictable. Domestic violence advocates, like those at BTS, can help you with community resources, tips to stay safe, and legal options that are available to you. While each state is different in process, length of orders, and eligibility qualifications, each one offers protective orders or restraining orders to those that are in imminent danger.
What exactly is a protective order?
According to Legal Dictionary a protective order/ restraining order is a court order issued to prohibit an individual from causing harm or fear to another person by ordering the abuser to have no contact with or to stay away from the victim. There are two courts that grant protective orders: the civil court and the criminal court. When an abuser has been involved in a domestic violence dispute that involves criminal charges, the state takes over the case and a prosecutor decides whether to pursue legal actions against the abuser, regardless of your intentions of pressing charges or not. In criminal cases, the victim is limited in their involvement and the outcome of the case. In fact, it isn’t uncommon for a victim to be subpoenaed and required to testify against the abuser. However, in civil court, you are able to ask the court for protection from the abuser and have more control over the outcome of the order.
There are three types of orders that are available to victims, each one with their own purpose, duration, and rules.
- Emergency Protective Order: This order is known as an emergency protective order, and is filed in the criminal court. An EPO can be requested by the survivor but is frequently requested by a police officer who was at the scene or a prosecutor who is filing charges against the abuser. If domestic violence was committed that resulted in a serious injury or the use of a weapon, the magistrate is expected to issue an EPO, regardless of who or if anyone requests it. EPO’s commonly last 31-61 days and can extend to 91 days if a deadly weapon was involved.
- Temporary Ex-Parte Protective Order: Ex parte orders can be issued through civil court, which requires you to fill out an application that is reviewed by a judge. If the judge determines there is a need, an ex-parte is immediately granted, In most states, this is done without the abuser appearing in court and is served after the order is in effect. The temporary order typically lasts 20 days and is only extended if the abuser is unable to be served.
- Final (Permanent) Protective Order: A final protective order, or restraining order, typically doesn’t live up to its name–it commonly is not final or permanent. This order is also requested through the civil court by the survivor and requires a little more preparation and participation than the emergency and ex-parte PO’s. Each order is unique to the case and the needs of the victim. The length of a PO can range from one to five years, with the average lasting two years. In some cases, the order can be granted for a longer period of time or extended if there is evidence that the survivor is still in danger. In most states, the abuser can file a motion that the order is discontinued after one year and if evidence shows the victim is no longer in danger, the order can be dropped before the expiration date.
According to Findlaw.com, final orders are for victims that are needing longer protection. Protective orders provide the victim with provisions that can help keep them safe. Depending on the state you live in, and the needs of the victim, these provisions can include;
- No Contact: Prohibits the abuser from contacting the victim in any way, including by phone, text, social media, postal mail, email, in person, or through third party.
- Peaceful Contact: Allows limited communication for specific purposes, mainly regarding children and visitations.
- Stay Away: The abuser must stay a specified distance away from the victim, this includes their home, in public, schools, and other places that the victim frequently visits.
- Move Out: This evicts the abuser from the family home, regardless of if their name is on the lease or mortgage.
- No Firearms: Orders the abuser to surrender all firearms, and prohibits them from buying more during the duration of the protective order.
- Counseling: Refers the abuser to anger management, substance abuse, or other counseling.
Many states also include temporary modifications to child custody and child support. Stay away provisions can be added for children, family members, and even pets.
Where do I start?
Victim advocates play a big part during this process. They can help you research your specific states eligibility requirements and steps to obtain a PO, as well as offer much needed support throughout the process. You can find information on distinct laws and provisions for your state here.
You will most likely need to apply for your protective order at the courthouse in the county where the abuse took place; however, some domestic violence agencies are able to assist with this process. You will be given an application that must be completed and signed under oath before it is able to go in front of the judge. It is crucial to be as specific as possible when filling out the application, as well as provide any type of evidence that you have that will support your request. If you are applying for a temporary order, the judge will only need to review the application and issue the order.
If you want a protective order that will last longer, a court hearing will be scheduled and the abuser will be served to inform them of the allegations and the date of the hearing. It is possible that the county attorney can assist and represent you in presenting your case in court. The defendant has the option to hire an attorney to represent them as well. On occasions, if both the abuser and victim agree to the protective order provisions, then a court appearance may be waived. However, if a decision cannot be agreed upon, both abuser and the victim will go in front of a judge.
One of the biggest deterrents to obtaining a protective order is the possibility of facing the abuser in court. Support is crucial during this step, whether it is family, a friend, or a volunteer advocate, having someone there with you is valuable. In situations where domestic violence is a concern, it is doubtful that you will have to talk to your abuser, let alone be in the same room, until the hearing. To ease the tension, you can focus on someone else in the room, avoiding eye contact with your abuser is perfectly acceptable. You can also wear a necklace, hold a smooth rock, or any other “comfort object” to help calm your nerves. Some victims find it beneficial to visit the courtroom before the hearing date to get an idea of where they will be in comparison to their abuser and get familiarized with the process of the hearing.
How does this piece of paper protect me?
A protective order is not a protective bubble or an iron-clad guarantee that you will be safe from your abuser. A PO is a court-ordered tool that makes it a crime for your abuser to violate any part of the protective order. If the abuser does go against the order and it is reported, they will most likely be charged with a misdemeanor, felony, or contempt of court, depending on the violation. Consequences also include fines, mandatory arrest, and jail time.
However, a protective order does not take the place of being vigilant of your surroundings, having a safety plan, and protecting yourself in public, and online. A PO’s success relies significantly on the victim’s willingness to report violations, keep good records, and make sure that the order remains up to date with current information. Researching protective orders, processes, and guidelines for your particular state is very important before applying for one. Knowledge is key, and no decision should be made without knowing all the facts.
If you or someone you know is in an abusive relationship, there is help. You can visit the Break the Silence website at www.breakthesilencedv.org or chat with one of our helpline advocates at 855-287-1777.