Restraining orders
Restraining orders are legal instruments designed to protect individuals from potential harm or harassment by prohibiting specific actions by another party. They are commonly sought in civil proceedings when a plaintiff can demonstrate that ongoing actions by the defendant may result in immediate and irreparable injury. A temporary restraining order (TRO) can be issued to maintain the status quo until a final judgment is made, with the possibility of evolving into a permanent injunction if the plaintiff prevails.
One important subtype is the domestic violence restraining order, available in all fifty states, which specifically addresses threats or acts of violence between intimate partners. This type of order typically mandates the alleged perpetrator to cease any harmful behaviors, vacate shared living spaces, and avoid contact with the victim, while also often addressing matters of child custody and support. The process for obtaining such an order usually involves an ex parte hearing, where only the petitioner presents their case. If granted, the restraining order remains in effect for a specified period, usually one year, and violating it can lead to significant legal consequences.
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Restraining orders
SIGNIFICANCE: This remedy preserves a plaintiff’s rights to avoid irreparable injury, pending final determination of the parties’ rights; a variant of the restraining order helps protect victims of domestic violence.
In the usual course of a civil legal proceeding, the court makes no order affecting either party’s substantive rights until the final judgment. In some situations, however, a plaintiff’s rights may be irreparably damaged if the defendant continues taking some action. In such a case, the plaintiff may apply to the court for a temporary restraining order (also known as a “temporary injunction”).
To be granted this extraordinary relief, the party seeking the order must show that immediate and irreparable harm is likely to result from a continuation of the status quo, or that the defendant is acting in a manner that will make any final judgment on the merits ineffectual. The burden is on the plaintiff to show entitlement to the order, and the court is likely to balance the relative inconveniences to the plaintiff and the defendant in determining whether the order should be issued. The temporary restraining order is effective only until a final judgment is issued. If the plaintiff is ultimately successful in the adjudication, the court may replace the temporary restraining order with a permanent injunction.
One special type of restraining order is the domestic violence restraining order. All fifty states have statutes authorizing a court to issue a restraining order against the alleged perpetrator of domestic violence, upon application by the intimate partner or former partner of the alleged perpetrator. Although the law varies among jurisdictions, this type of restraining order typically orders the respondent to refrain from further violence, harassment, or intimidation of the petitioner. It typically orders the respondent to vacate the home and to avoid contact with the petitioner at work, church, and school. The order also usually establishes custody and visitation for minor children, if necessary, and may order child support or spousal support.
The typical procedure for obtaining a domestic violence restraining order is for the petitioner to make application for the court in an ex parte hearing—a hearing before the court in which only the petitioner is present, not the respondent. If the court finds that the statutory requirements are met, it issues a restraining order, which is then served upon the respondent. The respondent has a period of time (usually twenty-one days) in which to contest the order at a hearing. The restraining order typically is in effect for one year, unless vacated earlier by the court. Violation of the restraining order is punishable by civil or criminal penalties, and the violation itself (such as an assault) is also a separately punishable crime.
Bibliography
Dale, Alexander C., and Jordan M. Spanner. "Preliminary Injunctions and Temporary Restraining Orders--What Are They?" National Law Review, 18 Feb. 2022, natlawreview.com/article/preliminary-injunctions-and-temporary-restraining-orders-what-are-they. Accessed 10 July 2024.
"Domestic Violence Restraining Orders." WomensLaw, 27 Apr. 2023, www.womenslaw.org/laws/general/restraining-orders. Accessed 10 July 2024.
Haugaard, J. J., and L. G. Seri. “Stalking and Other Forms of Intrusive Contact Among Adolescents and Young Adults from the Perspective of the Person Initiating the Intrusive Contact.” Criminal Justice and Behavior 31, no. 1 (2004): 37-54.
Meyer, J. F., and D. R. Grant. The Courts in Our Criminal Justice System. Upper Saddle River, N.J.: Prentice-Hall, 2003.
Neubauer, D. W. America’s Courts and the Criminal Justice System. 7th ed. Belmont, Calif.: Wadsworth, 2002.