Understand how restraining orders work, the consequences for violating them, and tips for fighting a permanent restraining order.
Updated May 05, 2023
You just got served with a restraining order. Now what? First things first. Read the entire order and obey the terms of the order. Then, you'll likely want to contact a restraining order lawyer to help you understand what's happening and, possibly, fight the order in court.
Restraining orders, even temporary ones, should not be taken lightly. You might get the order and learn that you need to move out of your house and avoid all contact with certain individuals, including your kids. Violating the order can result in an arrest, jail time, and a criminal conviction. Even if you think the allegations are false and the order was issued against you unfairly, it's still important to follow its terms and consult an attorney on your next steps. You might be able to fight the order altogether or convince the judge to drop or modify certain conditions.
How Are Restraining Orders Issued?
Courts have the authority to issue restraining orders (also referred to as protection or no-contact orders) when a person alleges to be in danger of immediate harm. The order can direct a party to stop their harmful behavior (such as abuse) and avoid further contact with the alleged victim. Most restraining orders are issued in connection with domestic violence or conflict in intimate or family relationships, including physical abuse, threats, harassment, stalking, and sexual assault. They may also be issued if you're in a dispute with say your neighbor or employer. A violation carries criminal consequences.
Civil Court Process
Although restraining orders can be issued in a criminal case, if you were served, the alleged victim likely filed a petition in civil court asking for the order. Court documents often refer to the alleged victim as the "petitioner" and the restrained person as the "respondent" or defendant. The procedures for getting a restraining order vary by state.
Temporary or Ex Parte Restraining Order
Often, a court will first enter a temporary or ex parte (ex PAR-tee) restraining order that will last for a few days. The judge issues this temporary order based only on allegations presented by the petitioner and without holding a hearing. Before issuing a more permanent order (which often lasts a year or more), the judge must give the respondent notice and an opportunity to be heard in court and to contest the allegations. These hearings take place pretty quickly, so as the respondent, you might have only a week or slightly longer to make decisions and prepare for the hearing. Violating a temporary order is just as serious as violating a permanent order.
How to Fight or Defend Against a Restraining Order
If you're served with a restraining order, it's important to act quickly. As noted above, you might have only a few days to file response papers with the court and prepare for the hearing. Here are some tips on preparing for and defending against a restraining order.
1. Read the Entire Restraining Order and Follow It
It can't be said enough, you'll want to read the entire order so you don't violate it. Violating the temporary order will make it that much harder to fight the permanent order.
You'll also want to read it to:
- find out when the court hearing is scheduled and response papers are due
- learn what the allegations are against you, including any evidence, and
- take note of your rights, for instance, to receive notice of the hearing, to present evidence, and to have a lawyer present.
The right to have legal representation doesn't mean free representation. Restraining orders are civil matters, and as such, you are not entitled to a public defender or a court-appointed attorney (that right is reserved for indigent defendants in criminal court).
2. Call a Lawyer Who Defends Restraining Orders
You don't have to get a lawyer to fight a restraining order; you can represent yourself. But it's typically best to contact an attorney. Look for attorneys who specialize in family law or divorce. They've seen their fair share of restraining orders and are generally a good place to start. Remember this matter will be heard in civil court, not criminal court.
You'll want to review the order with your attorney and go over all the allegations and evidence. The attorney can assist you in developing a defense and represent you in court.
3. Gather and Organize Evidence or Documents
On your own or using your attorney's guidance, you 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, receipts, 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.
Before the judge will issue the permanent order, the petitioner must prove the allegations, typically by a preponderance of the evidence (a standard of more likely than not). The above information could prove useful to discredit or disprove the petitioner's allegations. For instance, you might be able to show you were at a concert or out of town on the night an alleged incident occurred. Or your phone records might contradict the petitioner's accusations of repeated phone calls or texts. If the petitioner states that you keep driving by his or her house, 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.
4. Go to the Hearing
You're not required to go to the court hearing. But if you don't show, the court may, and likely will, issue the permanent order. The conditions and restrictions in a permanent order often go beyond what is in the temporary order. For example, the permanent order might:
- determine temporary child visitation and custody rights
- order the respondent to pay the petitioner's rent or mortgage payments, household bills, and child support
- give temporary possession of the home and vehicles to the petitioner
- prohibit the respondent from possessing firearms, and
- order the care and custody of family pets.
The hearing might be your one and only chance to tell your side of the story to the court, present evidence, and question the petitioner regarding the allegations.
Make sure you get to court on time. Address the judge as "Your honor" and follow the general rule: Don't speak unless spoken to.
What Not To Do When You Get a Restraining Order
With restraining orders, avoiding certain actions will be crucial to defending against a permanent order and not getting slapped with criminal charges.
- Do 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.
- Do not 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).
- Do not disregard a temporary restraining order in any way.
- Do not try to get around a provision in the order.
As to the last one, claiming ignorance as to what "no contact" means is not a good strategy. No contact means no contact. For instance, don't try to get around the order by going by the children's school or visiting them at a relative's home. Don't ask a third party to relay your message to the petitioner. And if the petitioner asks you to meet up to talk things over, you can't accept the invitation without violating the order. A petitioner's invitation doesn't negate the order.
Consult an Attorney
Restraining orders are serious business. Your ability to win and defend against a permanent order will depend on having a thorough understanding of the law in your state. Refuting accusations will require admissible evidence and relevant arguments. Having an experienced attorney on your side—someone familiar with the law, rules of evidence, and court proceedings—will greatly increase your chances of a favorable outcome.
