Defending Against a Restraining Order
A temporary restraining order in a domestic violence situation can restrict contact with the petitioner, as well as child visitation. A hearing for a permanent order usually follows soon. It's essential to obey the temporary order and obtain legal counsel
Courts have the authority to issue restraining orders (also referred to as orders of protection) that require a person to stop certain behavior, such as contacting or abusing the person who requests the order. Most restraining orders are issued in connection with domestic violence or conflict in intimate or family relationships, including physical abuse, harassment, stalking, and sexual assault.
Courts also can issue restraining orders in civil matters—for instance, prohibiting a person from contacting a non-family member or intimate partner or from going to a certain business or professional office. This article addresses restraining orders and orders of protection in domestic relationships, and focuses on the nature of the order and advice for what to do (and not do) when faced with such an order.
Domestic violence laws vary greatly by state. To learn about the specifics for your state, see Domestic Violence & Abuse, where you’ll find several articles on the subject, as well as links to state-specific articles that explain each state’s laws in detail.
Restraining Orders are Serious Matters
If you are the subject of a restraining order, understand that it is a very serious matter that deserves your prompt attention. You do, however, have important rights. If a person (known in the case as “the petitioner”) asks a court to issue a restraining order against you because of alleged domestic violence or other domestic conflict, you are entitled to be notified of the request, to have a court hearing, and to defend yourself. (Temporary orders are an exception; see the explanation below.) You also have the right to be represented by an attorney, although in restraining order proceedings, you are not entitled to free counsel or a court-appointed attorney.
You should never ignore a restraining order request. Instead, you should get information about your rights and options, consult with a lawyer, and participate in the court process. Once a restraining order is entered, you can be charged with a crime if the protected party accuses you of violating the order. If a permanent order is issued, you will be prohibited from possessing a firearm while the order is in effect, and the order will show up on background checks.
In most states, a court can enter a temporary restraining order that will last for a few days, without first holding a hearing and without the target of the order (known as “the respondent”) being present. However, the judge must conduct a formal hearing before entering a permanent order. These hearings, to which the respondent receives notice, are usually set quickly, so you may have only a week or ten days to make decisions and prepare for the hearing.
What to Do If Someone Files for a Restraining Order Against You
You’ll want to take specific steps to deal with the prospect of having a restraining order issued against you. Here are some suggestions.
Obey the Temporary Restraining Order
First, a note on what to do if you are served with a temporary restraining order. Follow all the orders contained in it, such as not having contact of any kind with the petitioner, even if you feel that you have a valid defense and will defeat an attempt to turn the temporary order into a permanent one. Then, contact an attorney immediately, so that you can prepare for the hearing on the permanent order.
You also should:
- gather any physical evidence relating to any incidents or events the petition refers to, such as clothing, photos, videos, and objects.
- assemble any documents or records that could relate to the case, such as letters, emails, phone and GPS records, computer records, and records that might show where you were at the time of an incident, and
- make a list of possible witnesses—include every person you think has information about the incident, the accusations or the petitioner—and obtain the witnesses’ contact information.
How might these items be useful? If the petitioner has made false accusations about an incident, you might have photos or videos of the event or a witness might be able to testify that you were not even there when the alleged incident took place. If the petitioner accuses you of calling or texting repeatedly, your phone records might show otherwise. If the petitioner states that you have driven by his or her home several times a day, your GPS records may enable you to disprove it. This kind of information is very important to bring to your attorney and the court’s attention.
What Not To Do
If you are facing a petition for a restraining order, you should not:
- destroy evidence that you think could hurt you, as this may cast you in a suspicious light with the court and can lead to criminal charges
- try to talk to the petitioner or witnesses you expect will testify for the petitioner about the case, or have any contact with them (including text messages or email), or
- disobey or disregard a temporary restraining order in any way.
If you violate a temporary restraining order, the petitioner can bring that up in the hearing or even file a motion alleging a violation of the order, making it even harder for you to defend against the request for a permanent order.
If you and the petitioner have children together, the temporary restraining order may tell you not to have contact with the children (or to do so only under supervised conditions) until the court addresses the request for a restraining order at a hearing. You should not try to “get around” the order by going by the children’s school or visiting them at a relative’s home. Again, the petitioner can bring this up at the hearing or even file a motion alleging violation of the temporary restraining order.
Consult With an Attorney
As explained, restraining orders can happen quickly (temporary orders) and are usually followed soon by a full-blown hearing on a permanent order. Your ability to defend against a permanent order will depend on having a thorough understanding of the law in your state. Refuting accusations against you will require admissible evidence and relevant arguments. Having an experienced family law attorney on your side -- someone familiar with the law, the rules of evidence, and the sensitivities of the judge -- will greatly increase your chances of a favorable outcome.