A restraining order is issued by a court, and restricts one person from contacting or harming another person. Generally speaking, this is accomplished by requiring the individual to either do, or not do, a specific act.
An example of this would be a restraining order that requires one person to maintain a specific distance, such as four hundred feet, from another person. The length of restraining orders could range from several days to several years, and those who violate the order could face criminal penalties for failing to follow the order.
Terminology can vary on a state by state basis. Restraining orders can be referred to as protective orders in some states, but not in others. Additionally, there are different types of restraining orders that may be issued depending on the circumstances. The most common restraining orders are issued in order to restrict a person from physically harming another person. However, there are other types of orders that may be issued in order to prevent emotional or even economic harm.
Restraining orders are most commonly utilized in cases involving:
- Domestic violence;
- Stalking; and
- Sexual assault.
Additionally, restraining orders are not only issued to protect a single person. Orders may also include other people, such as:
- Family members;
- Children, such as with a child protection order;
- Businesses; and/or
- The general public.
Most restraining orders are issued as a result of a person seeking protection from immediate harm. It is fairly uncommon for a prosecutor to request a restraining order, or for a judge to issue it on their own without a request first being made. However, there are some situations in which a restraining order is issued without a person needing or requesting protection.
An example of this would be how in a divorce case, a judge might automatically issue a restraining order requiring both parties not to sell, destroy, spend, or otherwise dispose of marital property. This order would last until the divorce has been finalized.
What Is a Temporary Restraining Order (“TRO”), and How Do I Obtain One?
As previously mentioned, there are different types of restraining orders that may be issued, depending on specific circumstances. These different orders can be categorized as either temporary, emergency, or protective.
A temporary restraining order, or TRO, is a short term court order. This order states that a person must refrain from specific activities, or they must stay away from a certain location or person. A TRO is not permanent, and is intended to last only until the court holds a hearing to decide whether or not to grant a preliminary injunction. The differences between the two will be further discussed later on.
Under TRO law, in order to obtain a temporary restraining order, the person needing the TRO will need to immediately report any incidents to their local authorities. The person needing the TRO is typically the victim of domestic violence, and local authorities would most likely be the police. From there, you would request that the court issue a TRO in order to protect you from experiencing any further harm. The temporary order is generally issued after a party appears in court to explain why the order is necessary. Generally speaking, the other party is not present for this portion of the process.
Should the court determine that a temporary restraining order is necessary, the order will most likely be issued on the same day that the person requesting the order appears in court. Additionally, the court will schedule an Order to Show Cause hearing. This hearing ensures that both parties have the opportunity to explain to the court why a more permanent restraining order should or should not be issued.
TROs are generally obtained through your local court; however, it is not impossible to obtain an order if the court is closed. You would contact your local police department, as in some jurisdictions, the police have the power to issue an emergency protective order. This order has the same effect as a temporary restraining order, and will last until the next business day that the court is open.
Who Can Issue Temporary Restraining Order? How Long Are Temporary Restraining Orders Good For?
Temporary restraining order requirements consist of the victim attempting to prove to the judge they will suffer “immediate and irreparable” injury if the order is not issued. The process to file a TRO begins the moment the victim reports any incidence of violence. Temporary restraining orders become effective as soon as they are served to the person who is being restrained by the order. Local police are responsible for serving the temporary restraining order to the alleged abuser.
The temporary order will remain in effect until the Order to Show Cause hearing, in which the court will review the facts in terms of the need for the order, and determine if there is a need for a long term restraining order. They will also determine how long the long term restraining order should last. It is common for a TRO to have a set expiration date; otherwise, it will usually last until the court hearing.
Some states place a limit on how long a restraining order can last, but do allow the court to issue a longer order depending on the circumstances. An example of this would be how in Texas, a domestic violence restraining order can only last for two years. However, the court can issue an order for longer if the abuser caused bodily injury, or committed a felony against the victim or another member of the family or household. Additionally, either party can ask the court for a hearing to modify, extend, or remove a restraining order.
What Is the Difference Between a Temporary Restraining Order (“TRO”) and a Preliminary Injunction?
A preliminary injunction is an order intended to maintain the status quo. It prohibits an action while the associated court case is being decided. It is a specific type of temporary injunction which can be issued before trial, but after the parties have had the opportunity to be heard. A preliminary injunction can only be issued if the party requesting the injunction is able to prove that they will likely prevail at trial.
An example of this would be if the person alleging domestic abuse provides convincing evidence that the domestic abuse truly occurred. Another example would be if one person is claiming ownership to a house. They would need to provide sufficient evidence that they are indeed the rightful owner.
In both examples, a judge may enter a preliminary injunction until the trial is concluded. This prevents a party from taking irreversible action between the hearing and the end of trial. As such, a preliminary injunction is similar to a TRO, but is only entered after a formal court hearing. This would be the best demonstration of temporary restraining order vs preliminary injunction.
Do I Need an Attorney if I Have Issues with a Temporary Restraining Order?
If you need a temporary restraining order, you should contact an experienced and local criminal law attorney, after you have contacted local law enforcement. Because state laws vary in terms of how to obtain a TRO, and how long the order will last, an experienced and local family law attorney will be best suited to helping you understand how best to proceed with obtaining a TRO in your state. An attorney will help you gather all necessary evidence to prove your case, and will also be able to represent you in court, as needed.