A comprehensive guide for survivors of domestic violence on getting an order of protection
- By Amanda Kippert and Stephanie Thurrott
Many survivors of domestic violence choose to get a restraining order, or order of protection, against the person who is or was abusing them. While some may think it’s “just a piece of paper,” this legal document can actually be the key to sending an abuser a clear message to stay away, helping a survivor and their children get to safety, and resulting in criminal charges if not obeyed.
What Does a Restraining Order Do?
If you feel you are in danger, you can request a temporary PPO. “You give the judge or magistrate enough information to warrant immediate emergency protection,” says Robin M. Lalley, a family law attorney with Sodoma Law, based in Charlotte, NC.
A temporary protection order typically lasts for a short period, generally ten days. That gives you and the other person time to prepare for follow-up hearings where you can request a permanent protection order, which can last for a year or more.
Whether it’s called a restraining order or an order of protection—the terminology can vary depending on what the court system in your area chooses to call it—this civil order can do the following:
- Restrict an abuser from contacting, intimidating, threatening or otherwise interfering with a survivor, as well as any other person named by the court, such as family members. The abuser may be required to stay away from the survivor’s home, business, school, place of employment or any other location named by the court.
- If a ”no contact” provision is included in the order, it means an abuser cannot contact or subsequently harass the survivor in any way, including through email, text or social media.
- A restraining order can also mandate that a victim retain custody of shared children.
- It can even protect pets.
- The order can demand an abuser move out of the residence you share (known sometimes as a “kick-out order.”)
- Require an abuser to surrender firearms or prevent the purchase of firearms.
Are Restraining Orders Effective?
Of course, there are cases where abusers don’t take an order of protection seriously, but according to studies, an order of protection reduces the risk of violence overall.
In a study published in The Journal of the American Academy of Psychiatry and the Law involving 2,691 women who reported an incident of intimate partner violence to police, researchers found that having a permanent order of protection in effect resulted in an 80 percent reduction in police-reported violence in the next year.
Similarly, in a study of 448 women who had police-reported intimate partner violence, researchers found that the odds of violation after the protection order was granted were less for contact, threat, sustained psychological abuse and physical abuse by the abuser when compared with women who had reported intimate partner violence but had not obtained protection orders. This all depends on whether or not local police will enforce protection order violations, warn advocates, which tends to vary by community.
Types of Restraining Orders
Laws vary by state, but in general, you can file three types of restraining orders:
- A domestic PPO. This type of PPO covers an abuser you have or had a personal relationship with, such as a spouse or ex-spouse, someone you are dating or dated in the past, the parent of your child, or someone who lives in your home or lived in your home in the past.
- A stalking PPO or a nondomestic PPO. This type of PPO covers a person you don’t have a personal relationship with to protect yourself from activities such as threats, harassment, or intimidation. Stalking behavior can include following you, calling or texting you, tracking your location, monitoring your phone or threatening to harm you.
- A sexual assault PPO against a person you don’t have a relationship with to protect yourself from threatening sexual behavior such as rape or attempted rape, unwanted touching, exposing genitals, public masturbation or sharing sexual images. If you are under age 18, it can protect you from someone who tries to give you obscene material.
All three types of protection orders may ban a person from:
- Coming on your property
- Threatening to kill or physically harm you
- Taking away your children if you have custody
- Bothering you at work
- Calling or contacting you
- Sending you mail
How Do I Get a Restraining Order?
While the exact process may vary depending on your jurisdiction, the first step is typically to get a temporary order of protection, sometimes also called an emergency order of protection (EPO). Most times, an EPO can be filed for on the scene of a domestic violence crime, by police or a victim advocate, and given to the survivor on the spot.
An EPO usually lasts anywhere from a few days to a week. After that, if the survivor decides on additional protection, they can apply for a permanent restraining order that can last six months up to several years and can be renewable. If there are shared children, the restraining order can outline provisions for custody arrangements, such as a safe drop-off and pick-up (after custody details are determined in family court).
You can also go to the courthouse where you live to file for a personal protection order. If the courthouse is closed, you’ll likely go to the magistrate’s office. If you aren’t sure where to go, search online for “restraining order” or “PFA” and your zip code or your county’s name. (Don’t search for “PPO” since that brings up preferred provider organizations for medical care.) Your county’s website may have information about obtaining a temporary protection order and links to print out the forms you need. You can also call your police department if you’re not sure where to go or call your local domestic violence shelter and ask an advocate to assist you in the process.
You should bring a timeline with you that documents the abusive actions that have taken place. Be as specific, detailed and organized as possible, Lalley says. If you leave information out of your request for a temporary PPO, you might not be allowed to include it in your request for a permanent PPO. So, for example, if your partner hits you and you seek a temporary PPO, you should also report previous acts of abuse.
A judge may be able to include other considerations in your PPO, so think about other things you may need beyond restricting the person’s ability to contact you. “Knowing what the other issues might be helpful to maximize the law’s ability to step in and help you,” Lalley says. Do you need possession of a home, car or pets? Do you need temporary custody of your children? A judge may be able to grant custody of children on an emergency basis, even if the children aren’t subject to abuse.
Keep in mind that the wheels of justice often turn slowly. You may be at the courthouse for several hours.
How to Get a Permanent Protection Order
You’ll most likely return to the same place where you obtained your temporary PPO to get a permanent PPO. When you go back for your permanent PPO you can represent yourself in court, but you may want to have a lawyer.
“People who are unrepresented sometimes don’t know what to do,” Lalley says. People sometimes freeze or become confused if the judge uses a lot of legal jargon and then just agree to dismiss the case. “Having a legal advocate with you probably would prevent that,” Lalley says.
You may be able to connect with free legal services to help you obtain a PPO. “If someone does not have the financial means to hire a private attorney, that would be my first step,” Lalley says. You can search for legal aid online in your area or connect with a nearby domestic violence resource for information. There may also be people at the courthouse or magistrate’s office that can connect you with representation.
Do I Need a Lawyer?
A temporary order of protection can most likely be granted without the survivor having to go to court, but in order to get a permanent order of protection, a hearing may be called. A hearing will also be called if the abuser challenges the order (asking the judge to cancel it) or if the abuser violates the order of protection. In these cases, a survivor may have to see their abusive partner in court, which can feel intimidating.
Ideally, a survivor would have representation in court. Since each jurisdiction has different rules as to what constitutes abuse, harassment and stalking, it can be helpful to have an attorney with experience in domestic violence representing the survivor and helping to prove their case.
However, that’s not always possible. Attorneys can be expensive, and many survivors leave an abuser without adequate financial resources, usually because of financial abuse that the abuser inflicted. At the same time, an abuser may secure legal representation, giving them an advantage in court.
Try not to panic, survivors. There are ways to prepare to represent yourself in court that can give you a better chance at making your case for abuse. Keep in mind that court proceedings in the last year have largely gone virtual because of the pandemic, so always check with your local jurisdiction around the specifics of a virtual hearing.
- Ask for Advice. Your state coalition should have advocates or experts on hand to answer questions about the restraining order process in your state. It doesn’t hurt to give them a call and ask what you should know before heading to court. You may also want to reach out to your local domestic violence shelter and ask if an advocate there could accompany you to court. They may have more in-depth knowledge of what a judge is going to ask or what else you need to prepare. Womenslaw.org and Legal Momentum are other great resources for free information on your legal rights.
- Prepare Your Paperwork. You can find court documents you’ll need for your state on Womenslaw.org. Fill out these forms as much as you can beforehand.
- Assemble evidence and witnesses. Is there anyone you can ask to be a witness for you who saw the abuse or its aftermath? This might include someone from your family, including your children, or a police officer, emergency room physician or a coworker. Do you have any evidence of the abuse? This could include police reports or hospital records; pictures of injuries sustained or objects broken in the home; a log of abusive incidents; threatening voicemails, texts, emails or social media messages; or 911 recordings (which you can subpoena – your local court will have a document to do that).
Finally, make sure to keep an eye on the court docket, which most jurisdictions will have online. This will contain your case number, important dates, motions filed and other records of your proceeding. You will want to check in on your case periodically to stay on top of the information posted in the docket, and to avoid being surprised by a development. It’s your job to monitor your proceeding.
It’s also a good idea to arrive early, hopefully before your abusive partner arrives, to avoid an encounter with them. If you’re feeling threatened, you can ask the judge to have security escort you to your car, or request that you be allowed to leave 15 minutes before the abuser so that you have an opportunity to depart safely. If the judge needs to leave the courtroom, you can also request that you and the abuser wait in separate areas to avoid intimidation tactics.
For a more in-depth explanation of how a court hearing may go, see this page on Womenslaw.org.
What Happens if You Aren’t Granted a PPO?
If you’re not granted your PPO, you can’t try again with the same evidence. But there are some routes you can pursue. If you filed because a crime occurred, you could file criminal charges. And if another act of abuse occurs, you could refile. If you have kids, you could file for custody through family court. “It’s not going to be a protective order, but it might be another avenue to get something in place to offer some layer of protection if you can’t get a more traditional protective order,” Lalley says.
Otherwise, you may want to connect with domestic violence resources in your area to find other ways to stay safe.
Frequently Asked Questions About Orders of Protection
Here are the answers to some often-asked questions surrounding orders of protection. Keep in mind that laws do vary by state.
Q: Does it cost anything to file for an order of protection?
A: No, it’s free to file for an order of protection.
Q: How do I get the order of protection served on an abuser?
A: If the abuser is not already in custody, you can contact local law enforcement to serve the abuser. Read more about the process in this article.
Q: What if the abusive partner violates the order of protection?
A: If your abuser is a repeat offender, or it was a serious violation, felony charges will most likely be filed. Otherwise, the offender will be arrested and charged with a new domestic violence charge (a misdemeanor) or contempt of court.
Q: If I move to protect myself, will my order of protection still be valid?
A: Yes! Federal law and the Full Faith & Credit Clause of the Constitution requires that a protection order can be upheld where it’s issued, as well as in all other U.S. states.
Q: Can I get an order of protection if I’m an undocumented immigrant?
A: Yes! Everyone in the U.S., regardless of immigration or citizenship status, has the right to obtain a protection order. Learn more about your rights in this article, “Safety for Undocumented Victims of Abuse.”
Q: Can I get an order of protection if I’m under 18?
A: Yes! You will typically need a parent or guardian to file with you, but if that’s not possible, there are provisions in many states that will allow for a trusted adult over 18, such as an advocate, counselor or family friend, to file on your behalf. You can learn more in this article.
We’ve prepared a toolkit “A Guide to Restraining Orders” to help you understand even more what restraining orders are and so you can better assess and understand your situation.
Content retrieved from: https://www.domesticshelters.org/articles/legal/a-guide-to-restraining-orders?utm_source=newsletter&utm_medium=email&utm_campaign=july05.