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Restraining Order: Definition & Process

Instructor: Anthony Rich

Anthony is currently a County Civil Prosecutor and has his Juris Doctorate. He has been a guest lecturer at several local universities.

A restraining order, sometimes known as a protection order, is designed to make it illegal for an individual to make contact with another person or persons. It is most often used in cases of domestic dispute, such as domestic violence or divorce.

Beginning the Process

A restraining order is an order prohibiting an individual or entity from carrying out a certain action, in most cases contacting another individual. The purpose behind most restraining orders is to make certain that an individual is safe and not subject to undue influence or harm during the pendency, or duration a matter is still active, before a court.

Certain restraining orders can be obtained through a criminal proceeding. Such criminal proceedings would include, in most states, charges of domestic violence, assault, aggravated menacing or stalking, amongst others.

In order to obtain a temporary restraining order through a criminal court, the petitioning party (the person who wants to restraining order in place) has to show a need for it to the judge. Most of the time these orders are either stipulated to, or agreed upon, or the judge issues without an objection from the respondent, or person whom the protection was sought from. The thought behind issuing a criminal temporary restraining or protection order is that the petitioner, or the party seeking to be protected, then will have enough time to file for a permanent restraining or protection order from the appropriate court.

Let's use an example to follow along through out this process. In our example, Jane, an abused woman, is seeking a temporary restraining order against her live-in boyfriend Bill, the abuser. Bill is criminally charged in the State of Ohio with domestic violence. Jane asks the court for a temporary order of protection, and it is granted immediately because of the abuse allegations.

Who Gets To Be Heard?

A temporary order will be issued upon the petitioner swearing to certain facts alleging that they need the order in place. In our case, Jane will testify to the abuse she suffered. In most states, if the judge assigned the case feels that these facts are enough for the issuance of the order, then an ex parte (immediate without the other party's consent or knowledge) order is issued until a hearing can be held to further divulge the facts alleged.

Respondents will have a chance to respond to the allegation as listed in the ex parte since at the issuance of it, they did not have an opportunity to do so. It is at this point that Bill can tell his version of the facts because, as everyone knows, no two stories are alike.

How Does It Become Permanent?

Most temporary restraining orders filed outside of the criminal courtroom require a hearing within a 10 days after their issuance to hear evidence about whether or not the order should be permanent. A permanent restraining or protection order will typically be sought from the Court of Common Pleas in the county in which either the petitioner or respondent reside.

There are two separate divisions within the Court of Common Pleas where individuals can apply for a restraining order. The family court division is designed for individuals who are related by blood or marriage or have a child in common. The general division is designed for individuals who have no relationship by either blood or marriage and have no children in common. Since Jane and Bill lived together and were involved romantically, this permanent order would come from the Family Court. If Jane and Bill were just roommates, this permanent order would come from the general division.

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