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How to File a Restraining Order

In late February 2022, the Wisconsin Assembly voted for a bill that allows survivors of sexual harassment to file a lifetime restraining order against convicted abusers. The bill, if Gov. Tony Evers signs it, will be known as Kayleigh’s Law. Kayleigh Kozak is a survivor if sexual assault and is pushing to pass the bill in 50 states.

A restraining order is a legal intervention that is meant to reduce the risk of future harm or threat to a person. The duration of a restraining order will vary according to jurisdiction. For a temporary restraining order, the time limit is typically 14 days. This limit may still be extended for another 14 days, depending on circumstances, or if the person to whom the order is directed consents to extending the TRO.

How do you file an order that will legally oblige someone to stay away from you?

How to Get a Restraining Order

The steps to obtaining a restraining order will generally be similar in most states. You can file the petition yourself or have a lawyer file it on your behalf.

If you file without a lawyer and you’re in a certain state, a restraining order will not cost you anything. In some states, a filing fee of $55 may be charged at the end of the hearing. When you’re granted the order, the defendant will be ordered to pay the fee.

The process will generally go like this:

  1. You head to a court near you and request the forms for a restraining order.

  2. You fill out the necessary forms.

The clerk may help you out or, if the court has one, an advocate may be available to guide you through the form. You must be specific and clear about the details in the form. Do not sign the document after finishing; show it to the clerk first because the form may have to be notarized or signed with court personnel to witness.

  1. A judge reviews your application.

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After a clerk sends your forms to the judge, your petition may be granted, or the judge may issue a summons for the abuser or defendant to appear in court. The judge may also issue a temporary restraining order if you are in immediate danger.

If the judge grants you temporary ex parte restraining order, review your copy of the order before leaving the courthouse.

  1. The service of process begins.

The order is not enforceable until the defendant or abuser has been served. Policies in serving the TRO or restraining order will differ. Some states, like Mississippi, will send a copy of the order to the police department of the sheriff. In other states, like New York, you’ll have to call the police or sheriff to get your restraining order served.

New York courts also include an affidavit of service along with the restraining order. That affidavit must be completed by the person serving the document. It will serve as proof that the defendant or abuser was served. When you use the police or sheriff’s department, they don’t need to notarize the affidavit. But if you use another process server, it must be notarized.

  1. You go to court for a hearing.

You must appear at all hearing dates. If you’re not able to, request a continuance. A continuance may also mean a reissuance or extension of your TRO. If the defendant doesn’t show up, the judge may reschedule the hearing or issue a default judgment, and you’ll be granted a protective order.

What Proof Do You Need for a Restraining Order?

It’s important to be detailed with your application for a restraining order. Instead of writing: “I’m being threatened,” write “I had a gun stuck to my face” or “I was cornered on my way to work, and he slammed his fist behind me.”

Every judge will want specific information about every incident that made you fear for your safety. Dates will also help solidify your case.

In addition to detailed incidents, you may also provide documentation:

  • Threatening text messages
  • Voicemail messages
  • Medical records of past abuse
  • Police reports
  • Witnesses

Evidence supports your claim of violence in a relationship, threats during a divorce and abuse. The judge will consider if your claim is reasonable, that a history of violence has occurred and that the violence precipitated the restraining order.

How Does a Restraining Order Work?

Restraining orders will differ from state to state. But in general, these legal documents authorize the following:

Stay away – abusers or defendants are ordered to keep away from your home, place of work, school or from where you are within a certain distance. The order may also cover your children, which includes daycare, doctors’ offices and even afterschool facilities.

Stop threats or abuse – a restraining order is meant to cease an abuse.

Prohibit contact – the abuser or defendant must not contact you by phone, mail, notes, through third-parties — from a common acquaintance to a service delivery.

Surrender firearms – some courts may order the defendant to also relinquish their handguns, rifles and any ammunition.

Use of property – the order may also award sole use of a home or a car to the petitioner.

Other courts may also include restitution, support and treatment as part of the restraining order.

Although you may have filed your restraining order in one county or state, the legal document is enforceable in other counties or states. This is due to the Interstate Stalking Punishment and Prevention Act of 1996, making violation of the order across state lines a federal offense. It’s punishable by imprisonment and a fine.

When a defendant violates the restraining order where it was filed, the punishment may be civil contempt penalties. The violation may just be a misdemeanor or, in some cases, a felony. In other states, the polices have the authority to make warrantless arrests for order violations.

What is the Difference Between Restraining Order and Protection Order?

Is a restraining order different from a protection order? No, they are the same concept.

Some states use “restraining order,” others use “order of protection,” “protection order,” “civil protection orders,” “domestic violence restraining orders,” or “stay away orders.”

Although you may be familiar with their application in family law courts for domestic violence cases, protection orders may also be issued by criminal courts for assault cases and by civil courts for harassment or stalking cases.

Although you can file for an order of protection or restraining order without a lawyer, it may be helpful to have their legal guidance. This is especially for violent cases. If a lawyer is out of your reach, some counties have victim’s advocates on staff.

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