Where can they be filed?
They can be filed in your local District Court, Superior Court or Family Court. If you already have a case pending in Family Court it makes sense to file it there so that the court may hear all issues at the same time. If you are a victim in a case in Superior Court, it can make sense to go to directly to Superior Court. Usually, it makes sense to go to your local district court; they are equipped to handle it and then can subsequently handle any violations.
When you go to court, there should be an advocate present to help you figure out the paperwork and sometimes stand with you in front of the Judge. You have to go in front of a Judge if you want a Restraining Order.
What does someone have to allege to have a Restraining Order issued?
First, you have to have one of the following relationships:
- Living in the same household or
- Involved in dating relationship or
- Related by blood or marriage or
- Have a child in common or
- Married or engaged.
Second, the party getting the Restraining Order has to allege the following:
- the party who wants the Restraining Order must show “a substantial likelihood of immediate danger of abuse; and
- the alleged abuse must have:
- attempted to cause physical harm;
- caused physical harm;
- placed plaintiff in fear of immediate bodily harm or
- forced plaintiff to engage against their will in sexual relations by force, threat of force or duress.
If the judge finds the Plaintiff’s testimony credible, he or she may issue an order ‘ex-parte’ and then schedule a date for both parties to be heard, or can not issue the order and schedule a two party hearing.
A judge can also order custody of children and child support as part of the 209A. You can be ordered to stay away or simply to not abuse the Plaintiff.
Do both parties get to be heard?
Sometimes the Judge will issue a restraining order “Temporarily” until the Defendant is served and both parties can state their case. The Defendant should consult with a lawyer before appearing in court.
In other situations, a Judge may simply schedule a hearing (with no temporary order in place) so that both parties are heard at the same time.
It’s important to note that all legal proceedings are recorded and if you are a Defendant in a 209A matter you should consult with a lawyer. When you are a Defendant in a Restraining Order anything you say in court can be used against you. Often there are Assistant District Attorneys in the room who are listening to the entire procedure. If you make a statement that incriminates yourself it can be used against you in a new criminal charge or if you have a current case pending. You definitely need to consult with a lawyer if you have a restraining order served upon you.
There are substantial penalties for violating a Restraining Order. The maximum penalty per violation is 2 and a half years committed to Jail and/or pay a $5,000 dollar fine. You can also be ordered to attend a Batterer’s Program and be precluded from going to certain addresses or areas.
What if someone violates a Restraining Order?
You must notify the police and the person will be arrested.
What if I want to cancel my Restraining Order?
You can go to the court where it was issued and ask for it to be brought forward. You will have go back in front of a Judge to get it vacated.
What if someone gets a restraining order against me and they are lying?
You should prepare to defend yourself with documentation and consult a lawyer. A Restraining Order will go on your permanent record and is only removable if you can demonstrate “fraud upon the court”.
If you have been served with a Restraining Order, click here.
If you don’t fit into one of the relationship categories for a Restraining Order – you can also be served with a Criminal Harassment Order.
If you have been served with a Harassment Order, click here.