One of the most common requests among family lawyers is the demand a protective order. The reasons are as diverse and colorful as you can imagine. Often a spouse wants to retaliate against the other after being served with papers. Sometimes, papers aren’t even filed yet and a spouse discovers infidelity, or financial problems, etc. The important thing to remember is that just because you want one doesn’t mean a court will grant a protective order.
Some Housekeeping Items:
There are many different flavors of ‘restraining’ or ‘protective’ order and it’s important to distinguish between them because each has different requirements and consequence and you don’t want to argue for something you don’t want or need.
Let’s focus on the most common type of order in divorces: Emergency Protective Orders. This is a legal document that protects a victim of abuse who is also in a close relationship to the abuser. Who can get a protective order? Jurisdictions vary but in general you must satisfy the following requirements:
- You and the opposing party (called the ‘Respondent’) must be 16 years old, or married, or emancipated.
- The Respondent harmed you.
- You are related to the Respondent, or have a child together, or live together or if you are pregnant by the Respondent.
One of the important words in the preceding paragraph is ‘harm’ because you will need to show the judge that the Respondent harmed you in order to prevail. Harm can take many different forms:
- Hitting, using a weapon, pushing, or kicking.
- Harassing you, stalking you, attempting to kidnap you, or sexual assault.
- Restricting your ability to call for help, or holding you in place and refusing to let you go.
- Throwing something at you, or breaking your property in an effort to intimidate you.
- Threatening to do any of the above.
Do I Have to Go To Court?
The quick answer is yes, but don’t worry, it’s not as bad as you think. Remember, the court is interested in protecting you. You will have to file papers, and see a judge, but most courts waive the filing fee in the cases of protective orders, they do not want a financial burden to prevent someone from seeking help.
The forms for a protective order are very simple. You need only identify the Respondent, how you have been harmed, and a few other details and then submit the papers to the court. The step by step procedure is this (remember, jurisdictions vary, but instructions are found in every courthouse):
- Fill out the forms for the protective order (they can be found on-line or at the courthouse).
- Go to the courthouse in your county and take the forms to the clerk. He/She will check your paperwork, watch you sign the documents, sign the request and assigned you a case number.
- The clerk will take you and the papers to the judge for an ‘ex parte’ hearing. ‘Ex parte’ means that you will see the judge alone, without the Respondent present.
- You will then explain to the judge why you want the protective order. Don’t worry, the judge is there to help. Just speak in plain English and be honest. If you need an interpreter the court can provide one.
Assuming the judge grants your request, the clerk will give you a copy and send a copy to the local sheriff to serve on the Respondent. Remember, you do not have to, and should not, deliver these papers yourself, the Sheriff will do that for you. In most jurisdictions, the clerk will also enter the protective order information into the statewide domestic violence database so it can be accessed by law enforcement.
Finally, the court will schedule a hearing for a Final Protective Order, since the order you’ve requested has an expiration date. In most jurisdictions the hearing for a Final Protective Order is 20 days after the emergency order was served on the Respondent.
You should plan on attending the hearing to ensure the judge hears your side of the story and the reasons you think the protective order should become permanent.
Finally, remember that if you need protection, help is out there. Go to your local courthouse and seek assistance, law enforcement professionals and court employees are happy to guide you through the process.