It could be that your spouse, boyfriend, girlfriend or roommate is taking out a restraining order against you, and you didn’t do anything wrong. Maybe you married someone who is not an American, and he/she wants to stay in the country, but without you.
What if you met someone with children, they moved into your house, and now they want to force you out? That person may have fabricated a story, such as you being physically abusive or is concerned by the threat of immediate physical harm, and now you find a restraining order has been filed against you.
The restraining order is not a criminal prosecution; it is civil. However, once it is in place, it will be on your probation record, and if you violate it in any way, he/she can take out criminal charges on you for violation of an abuse order. That is a criminal offense and can put you in jail. If you are in a panic and don’t know what to do, get legal advice, and get it now!
What is a Restraining Order?
A Restraining Order (or RO, referred to legally as a 209A) is an order of the court forbidding the Defendant from contacting the Plaintiff (a person who brings a case against another in a court of law) either directly or indirectly (through another party), and/or from coming within a certain proximity of the Plaintiff’s residence and/or workplace. This restriction may even apply to the Plaintiff’s children, who, in fact, may be the Defendant’s, as well.
Generally, the judge will initially put a Restraining Order into effect for about 10 days. At that time, the Defendant can come into court (he/she can come in for the first hearing if he/she knows about it) and object to it. The judge then has the option to extend the order for a year or any other period of time, or even for life, depending upon the circumstances. Of course, if the expiration date arrives and the Plaintiff does not show up, the Restraining Order becomes null and void. Also, at any time, the Plaintiff can go into court and request that the RO, or any part of it, be withdrawn.
What are the Criteria for a Restraining Order?
There must have been either the immediate threat of violence or actual violence itself. In addition, the two people must be either family (husband, wife, son, daughter, etc.), involved in a relationship (boyfriend/girlfriend, roommates, etc.) or have previously had a relationship, such as a former boyfriend/girlfriend, or former roommate, etc.
What is the effect of an RO on the Defendant?
Besides a restriction on his/her movement (e.g., the Defendant must not come within so many feet of the plaintiff’s residence or workplace, whether on foot or in a car), the Defendant may have to surrender firearms, or be denied an FID card in the future. He/she will also have the RO on his/her criminal record, usually for the rest of their life, and may even be listed on a national register. Also, as mentioned before, a violation of any provision of the RO can lead to a criminal complaint.
Do I need legal counsel for a Restraining Order?
Simply stated, yes. Whether it was issued for good cause or not, the Defendant must abide by the conditions of the RO, as long as it is in effect. That is why it is usually advisable for the Defendant to appear in court on the next date on the RO to hear what is said and to object to anything improper. It is also advisable that the Defendant be represented by a knowledgeable attorney, who is very familiar with ROs, to protect his/her rights and argue against the issuance of the order, if necessary. If there is or was no relationship between the parties, they are not relatives or there was no violence or threat of immediate violence, the attorney should be able to convince the judge not to issue the order.
Sometimes, whether it is true or not, the Defendant will be accused of violating the order and criminally charged with a violation of the RO. These charges are very serious and could result in incarceration. No matter what the case, you should be represented by an experienced criminal defense attorney at a hearing to issue a RO and at an arraignment, pre-trial conference, compliance & election or trial for violation of the order.