The Most Simplified Explanation Of Restraining OrdersAuthor: Ron Lasorsa
Copyright (c) 2009 Ron Lasorsa
People use restraining orders in order to protect themselves against certain conduct such as: violence, abuse, threats, stalking and even annoying behavior such as excessive contact via email, text message, telephone calls or in-person contact.
The process varies from jurisdiction to jurisdiction, but as a general rule, an individual (1) Files paperwork requesting a restraining order; (2) The paperwork is reviewed by a Judge and if warranted; (3) it is granted on a temporary basis and a hearing is set - Typically no fees are charged for filing restraining orders to allow anyone in need of one the ability to file without worrying about expense.
At the hearing, the Judge will ask the parties if they are opposed to a permanent restraining order being issued. Due to the ramifications and stigma that restraining orders can inflict, people generally do not agree to them and opt for a fully evidentiary hearing (or trial) on the issues.
A temporary restraining order will be granted without assuming guilt until a trial can be scheduled. If it is proven that the conduct described actually occurred and one party should be restrained, a permanent restraining order will be granted for anywhere from several months to (5) years in some states.
Common Terms: "Protected party:" the one seeking a restraining order; "Restrained party:" the one against whom the restraining order is sought; "TRO:" Abbreviation for temporary restraining order. "Permanent restraining order:" One that is granted for a period of months to (5) years by agreement or after a full evidentiary hearing or trial. "Filing fee:" Fees charged by the county to file various family law documents.
Why our restraining orders a problem in divorce? First lets begin with the statement that violence should never be tolerated by anyone at anytime. If you are the victim of domestic violence you need to seek immediate help for yourself and your children.
For the remaining group of people however who have applied for restraining orders simply because they are angry with their soon to be ex-spouse, this paragraph is for YOU: Restraining orders are a problem when they are granted to people who really don't need them because they become an inhibitor to normal communication.
A restraining order, whether temporary or permanent is not a document that the "protected party" gets to wield at the "restrained party." Actually, they are mutual meaning that NEITHER party can contact, communicate with, harass, annoy or irritate the other. Even though you are the "protected party" you still may not call or text your ex-spouse if there is a restraining order unless the court has specifically allowed both of you to engage in certain contact, i.e. conveying an emergency message about the children.
Assume a temporary or permanent restraining order has been granted in the following scenarios which outline the problems that could arise there:
1. Going to the lawyers office to discuss divorce issues such as property division: You cannot simply meet and discuss your issues if doing so would violate the terms of the restraining order (such as maintaining a distance of 25 yards in a public place). While it would seem easy to simply agree that the restraining order does not apply to this scenario, it is not that simple. A court order is viewed with the utmost respect and severity. Most attorneys with any respect for the law will not allow a client or the opposing party to walk into that trap. It's simple: At any time, the "protected party" can contact the authorities alleging a violation of the restraining order. And the simple truth is that if the "restrained" party is within 25 yards, for example it is a violation. Sure, it is an explainable violation once you go back to court, but it is a violation none the less.
2. Disposal of jointly owned property: Similar to the scenario above, there are times in a divorce when both parties must be present to handle the financial affairs of the divorce. Assume you are selling the family home and both spouses wish to be presents during the appraisal or a showing, restraining orders make this nearly impossible and expose the not-so-pleasant details of your divorce to outside parties. As I mentioned before, restraining orders carry a stigma; There is an automatic assumption that parties who need TRO's have problems that most people simply do not want to deal with. Divorces can involve a number of "experts" such as: appraisers, real estate agents, accountants, attorneys, mediators, etc. all of whom will know at the end of the day, that you two have a restraining order in place.
3. Mediation classes for custody and visitation: In many counties, mediation is required before the granting of custody orders. However, if there is a restraining order in place, two parties typically cannot attend the same mediation. So, you're thinking: "What's the bid deal? We'll attend separately?" The big deal is that the goal of mediation is to encourage a parenting plan that works for both parties which is best determined when parents can sit TOGETHER at the table with the mediator and craft an agreement that is in the best interest of the children.
4. Custody in general: Often a "restrained party" will have limited visitation with children during the restraining order period. The rationale is that if you are violent with "mother/father" you will be violent with "children." In fact, spiteful parents have even filed Temporary Restraining Orders in order to maintain a custodial advantage. On the flip side, a parent who falsely accuses the other of domestic violence or sexual abuse can lose custody of children so clearly, falsely accusing someone of abuse is not only perjury but it carries severe consequences of which people are often unaware.
5. Custody and visitation exchanges/day care and children's school: This is one of the most difficult areas to work around existing restraining orders. Imagine the hypothetical: Mom is to drop the children off with Dad at 5:00 p.m. on Friday night in the Macy's parking lot. Dad cannot actually approach mother or he will violate the restraining order so mom must remain in the car and watch as the children travel across the parking lot with their suitcases in hand to dad's car. This is not a huge problem unless the children are 6 months and two years old! Now, the court will often issue orders that lift the restraining order only during visitation exchanges - however if there is a real threat of violence, this "lift" could really put a parent in jeopardy AND the children might be exposed to domestic violence. As you can imagine, this also impacts day care and school for things like back-to-school night, parent-teacher meetings and other school functions. It also exposes the possibility of alerting school and day care personal to the details of your marital life which can lead to humiliation and embarrassment.
6. Common facilities such as: church, the gym, workplace. Often spouses worship together, belong to the same gym or other social outlet and even work together. Once these parties separate, these mutual locations are not split up in the divorce. Parties still need to be able to go to church, work and maintain as normal a life as possible and one that closely resembles the pre-separation days. When a TRO is thrown into the mix of things, the court can order a variety of solutions to maintain normalcy such as: order the parties to attend different church services for example or assign certain days of the week to husband and wife alike for the gym or golf club membership to avoid parties running into each other, hence violating orders.
The bottom line is that parties need to think things through before filing an application for a restraining order. Again, if you are the victim of domestic violence, there is no excuse to be abused by anyone at anytime for any reason. You must do what is necessary to protect yourself and your children. That being said, a TRO, while a court order is also still just a piece of paper and you should make sure to self-guard yourself beyond the document. But for those who have applied for a retraining order merely as a means of maintaining an advantage over or punishing the ex-spouse, the ramifications of such an order will apply to the protected party as well. Not only does it make the life of the "restrained" party more difficult, but the "protected party" has limitations, too which in the long run, may not justify the means.
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