The above three orders are common in the area of family law practice. They each have their own unique attributes. A restraining order may also be referred to as a temporary restraining order or a civil restraining order. This article will focus on restraining orders, and the other types of orders will be addressed in future articles.
Restraining orders and civil protection orders may be ordered in a civil proceeding, whereas a temporary protection order arises out of a criminal proceeding. A restraining order must accompany an underlying lawsuit. In the domestic relations area, a divorce, legal separation or annulment must be filed as the basic lawsuit. A restraining order may only be requested if one of these causes of action are filed. One cannot request a restraining order in a dissolution because of the underlying presumption that the parties are in agreement and will cooperate regarding all terms of their agreement, including the terms relating to their separation.
A restraining order is an order requiring the parties to the lawsuit to do or not do certain acts. For instance, a party may be restrained from transferring bank accounts or disposing of assets. It may order a party not to harass the other party or come upon property, such as the marital residence or a party's place of employment.
Requests for Ex Parte restraining orders, if needed, are usually made upon the initial filing of the underlying lawsuit, but may also be filed while the case is pending. "Ex Parte" means that one party is requesting the court to act on the request for the restraining order without notice to the opposing party and without the opposing party having an opportunity to come before the court and explain their side of the issue. In actuality, requests for the court to act on Ex Parte basis are the unusual rather than the usual. Normally the court prefers to notify all parties prior to issuing any orders to permit all parties to set forth their position before the court through the presentation of evidence. A court may or may not grant a request for a restraining order or for an Ex Parte restraining order. If an order is granted Ex Parte, the other party is generally permitted to request a hearing to present further information. The likelihood and the circumstances under which a court will issue any kind of restraining order may differ from court to court and even from judge to judge. Therefore it is important to consult with an attorney who is familiar with the court in which the lawsuit is filed.
A restraining order filed in a lawsuit is not enforceable by the police. It is a civil matter and must be enforced through civil proceedings. At times, the police may come out when called upon a violation of a restraining order, but they are not in a position to force the parties to obey the order or to arrest anyone. If the police do come out, it is merely to accommodate the parties and therefore each police department's policy may vary as to their willingness to become involved. The police are in a position to arrest people if they violate a criminal statute. Therefore, if you call the police and complain that your spouse sold a car in violation of a restraining order, they may invite you to make a report, but they will not take any action because a crime has not been committed. On the other hand, if you call the police because your spouse threatened you with a baseball bat, this violates the criminal statute prohibiting the assault or attempted assault by one family member against another, known as the crime of domestic violence. The police are authorized to act when a crime has been committed.
To enforce a restraining order where a party has violated that order, you must file a request with the court to find the other party in contempt of court. The court will set the matter for hearing and all parties will be notified. At the hearing, the complaining spouse must present evidence that the restraining order has been violated. If the complaining spouse is successful in proving the order was violated, the court will not proceed to immediately punish the offending spouse, although the offending spouse may be ordered to reimburse the complaining spouse for attorney fees and costs incurred in proving the violation. The court must provide the offending spouse with an opportunity to purge themselves of contempt or be pardoned by the performance of certain acts. Sometimes the acts are related to the violation itself. Therefore a denial of visitation may result in an order that the offending spouse provide "make-up" visitation. The purge is within the discretion of the court. If the offending spouse complies with the purge orders, no further action will be taken. If not, the offending spouse is subject to a fine and/or incarceration.
If a party is found guilty of contempt, the maximum sentences are as follows:
First Offense: $250.00 fine and/or incarceration up to 30 days
Second Offense: $500.00 fine and/or incarceration up to 60 days
Third Offense: $1000.00 fine and/or incarceration up to 90 days
If one spouse violates a court order, it does not excuse the other spouse from following other court orders. If a spouse fails to pay support, this does not release the other spouse from providing visitation. Acting on the advice of the police, Children's Services or even your attorney is not a defense to a contempt action.