Restraining orders, also known as protection orders, are legal measures designed to protect individuals from harm or harassment. These court orders can provide critical safety and peace of mind by prohibiting contact and proximity from an individual who poses a threat. Understanding How To File A Restraining Order is the first step in seeking this legal protection. This guide will walk you through the process, focusing on how to navigate the steps involved in obtaining a restraining order and what to expect along the way. While the specifics can vary by jurisdiction, the fundamental principles remain consistent.
Understanding Civil Protection Orders
Civil protection orders are typically issued in cases of domestic violence, harassment, stalking, or abuse. They are civil orders, meaning they are separate from criminal charges, though a violation of a protection order can lead to criminal penalties. These orders are designed to prevent further harm by legally restricting the actions of the person posing the threat (the restrained person) against the person needing protection (the protected person).
Filing for a Restraining Order: Key Steps
The process of filing for a restraining order generally involves these key stages:
Step 1: Determine Eligibility and Grounds
Before filing, it’s crucial to understand if you are eligible for a restraining order and if your situation meets the legal grounds for issuance. Grounds typically include credible threats of harm, harassment, stalking, or domestic abuse. Eligibility usually requires a specific relationship between the protected person and the restrained person, such as family members, intimate partners, or those with a shared residence. Consulting with legal aid or a domestic violence organization can help clarify your eligibility and the strength of your case.
Step 2: Obtain and Complete the Necessary Forms
The first formal step is to obtain the required court forms. These forms are usually available from your local court clerk’s office or the court’s website. You will likely need to complete forms that detail:
- Your personal information and that of the person you need protection from.
- The nature of the relationship between you and the restrained person.
- A detailed description of the incidents of abuse, harassment, or threats, including dates, times, and specific actions.
- Reasons why you believe you are in danger and need a protection order.
Accuracy and detail are crucial when completing these forms. Be clear, factual, and avoid emotional language.
Step 3: File the Forms with the Court
Once the forms are completed and signed, you must file them with the appropriate court. This is usually the civil court in the jurisdiction where you reside. Filing typically involves submitting the original forms and multiple copies to the court clerk. There may be a filing fee, but waivers are often available for those with financial hardship. After filing, the court will assign your case a number, which you will need for all future filings and inquiries.
Step 4: Attend a Hearing for a Temporary Restraining Order (TRO)
In many jurisdictions, you can request a Temporary Restraining Order (TRO) to provide immediate protection while waiting for a full hearing. A TRO can be issued quickly, often without the restrained person being present, based on your sworn statements in the filed forms. You will likely need to appear before a judge or magistrate to explain your situation and why you need immediate protection. If the judge grants the TRO, it is typically valid for a short period, such as 10-14 days, until a hearing for a permanent order can be scheduled.
Step 5: Serve the Restrained Person
For a permanent restraining order to be issued, the restrained person must be officially “served” with notice of the lawsuit and the hearing. “Service” is a formal legal process that ensures the restrained person is aware of the proceedings and has an opportunity to respond. Service must be done according to specific court rules, which often prohibit the protected person from serving the documents themselves. Acceptable methods of service usually include:
- Sheriff or Law Enforcement: Local sheriff’s departments often provide service of process.
- Private Process Server: Professional process servers can be hired to serve documents.
- Someone over 18 and not involved in the case: In some jurisdictions, a friend or acquaintance who is over 18 and not a party to the case can perform service.
It is critical to ensure service is done correctly and to file proof of service with the court. Failure to properly serve the restrained person can delay or jeopardize your case.
Step 6: Attend the Hearing for a Permanent Restraining Order
The final step is to attend the hearing for a permanent restraining order. At this hearing, both you and the restrained person (if they choose to appear) will have the opportunity to present evidence, testimony, and witnesses. You will need to demonstrate to the court, with credible evidence, why a permanent restraining order is necessary to protect you from harm. The restrained person can contest the order and present their side of the story.
The judge will then make a decision based on the evidence presented. If the judge grants a permanent restraining order, it can last for a specified period, often one or two years, or even permanently in some severe cases. The order will outline the specific restrictions on the restrained person’s behavior, such as prohibitions on contact, proximity, and communication.
Modifying or Dismissing a Restraining Order
Once a restraining order is in place, circumstances can change. Both the protected person and, under specific conditions, the restrained person can petition the court to modify or dismiss the order.
Dismissing or Modifying an Order You Filed (Protected Person)
If you are the protected person and wish to modify or dismiss the restraining order, you can file a motion with the court. Reasons for doing so might include:
- The threat has subsided.
- You wish to modify specific terms of the order.
Steps to Modify or Dismiss (Protected Person):
- Forms: Obtain and complete the Motion to Modify or Dismiss Protection Order form (e.g., JDF 397 in Colorado) and related order forms (e.g., JDF 410 and JDF 415).
- Filing: Provide the completed documents to the court clerk. The court will set a hearing date.
- Service: Arrange for personal service of the motion on the restrained person.
- Hearing: Attend the hearing and be prepared to explain your reasons for modification or dismissal.
Dismissing or Modifying an Order Against You (Restrained Person)
If you are the restrained person and wish to dismiss or modify the order, the process is more complex and often has waiting periods and specific requirements, especially if the order was issued after July 1, 2013. You generally must wait a certain period after the order was issued or after a previous motion to modify/dismiss was denied. Furthermore, any violations of the order and your criminal history are taken into consideration.
Key Steps for Restrained Persons:
- Time Restrictions: Wait the required time period (e.g., 2-4 years depending on jurisdiction and order date).
- Criminal History Check: Complete fingerprint-based criminal history checks from relevant agencies (e.g., CBI and FBI in Colorado). This process can take several weeks or months.
- Motion Filing: File a Motion to Modify or Dismiss, along with proof of completed criminal history checks.
- Hearing and Service: The process then follows similar steps to modification/dismissal initiated by the protected person, including service and a court hearing.
Key Considerations and Legal Advice
Filing for a restraining order or attempting to modify or dismiss one is a serious legal matter. It is highly recommended to seek legal advice from an attorney, especially in complex situations or if the restrained person is contesting the order. Legal professionals can provide guidance on the specific laws in your jurisdiction, help you prepare your case, and represent you in court.
Restraining orders are powerful tools for protection, but understanding the process and requirements is essential. This guide provides a general overview, but specific procedures and forms will vary. Always consult your local court and legal resources for the most accurate and up-to-date information.
