“Restraining Orders”: What Are They?
People often call us asking for assistance in getting a “restraining order.” And a “restraining order,” actually called a temporary restraining order (often referred to as a “TRO”), is a type of order that one can obtain from a court that legally prohibits someone from doing something. But a temporary restraining order is just that: temporary. What people usually mean when they ask about a “restraining order” is an injunction. A temporary restraining order is issued by the court as one step in the process that can end with an injunction, which is essentially identical to a temporary restraining order but is in effect for a longer period of time.
Most commonly, people want to get a “restraining order” because someone is seriously bothering, harassing, threatening, stalking, or even attacking them or their child. And there are three types of restraining orders and injunctions that we most commonly pursue for people or defend people against.
Domestic Abuse TRO’s and Injunctions
The first is a domestic abuse restraining order and injunction. Most commonly, this involves a boyfriend or girlfriend, or ex-boyfriend or ex-girlfriend, engaging in abuse. But under the law, this type of restraining order and injunction applies not only to be people who were or are in an intimate or dating relationship, but also to family members, adult caregivers against adults who they are caring for, current or former spouses, or people who have a child together.
The law defines domestic abuse as the intentional infliction of physical pain, injury, or illness, the intentional impairment of physical condition, sexual assault, intentional damage to property, or a threat to engage in any of those behaviors. If someone you are or were in an intimate or dating relationship with, if a family member, if an adult caregiver of yours, if a former or current spouse, or if a person you have a child with has engaged in any of those behaviors against you, you can pursue a domestic abuse temporary restraining order and injunction against him or her.
Harassment TRO’s and Injunctions
The second common type is a harassment restraining order and injunction. That can be pursued by anyone, against anyone, regardless of what kind of relationship you do or don’t have with the other person.
Harassment is defined by law as striking, shoving, kicking, child abuse, sexual assault or stalking, or threatening or attempting to do any of those things. It is also defined as engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose. If anyone—a co-worker, a person who lives in your apartment building, a neighbor, a person you see on the street, the guy at your local coffee shop, anybody—has done any of those things to you, you can pursue a harassment temporary restraining order and injunction against him or her.
Child Abuse TRO’s and Injunctions
The third type of restraining order and injunction that we often receive calls about is child abuse. This is most often filed on behalf of a child by a parent (although it can be filed by a stepparent or a legal guardian) and can be filed against anyone committing abuse or threatening to do so against a child.
How You Go About Getting One
The process of obtaining a TRO and eventually an injunction begins by filing a petition. A person can do this him or herself or an attorney can do it on his or her behalf. It can be very helpful to have the assistance of an attorney experienced in preparing and litigating TRO/injunction petitions; an attorney is familiar with the law, familiar with the legal standards for domestic abuse, harassment, and child abuse, and can craft the petition to meet the legal standards. The petition is filed with the clerk of court. It is promptly reviewed by either a judge or a court commissioner. If the judge or court commissioner finds that the allegations provide reasonable grounds to believe that the person named in the petition—called the “respondent”—has engaged in domestic abuse, harassment, or child abuse, a temporary restraining order is issue.
What It Is And What It Does
The temporary restraining order is an order of the court. It temporarily restrains the respondent from engaging in further abuse or harassment and from contacting the person who filed the petition, who is called the “petitioner.” Violating the TRO can result in criminal charges; that is the protection afforded by the TRO.
What Happens After I Get The TRO?
At the same time that the judge or court commissioner issues the TRO, a date and time for a hearing on the petition is set. The TRO is in effect until the hearing.
Once the TRO has been issued and a hearing date has been set, a copy of the petition and the TRO, with the hearing time and date, must be served upon the respondent. The purpose of service is to make sure that the respondent is aware of the allegations and when the hearing is.
What Happens At The Hearing?
At the hearing, the petitioner can present testimony and other evidence to the judge in support of the petition. The respondent, in turn, can also present evidence defending against the allegations. If the judge finds reasonable grounds to believe that the respondent engaged in abuse or harassment, an injunction will be ordered.
If the petitioner fails to show up for the hearing, as sometimes happens, the court will dismiss the petition for what’s called “failure to prosecute.” If the respondent fails to show up for the hearing, the injunction will be granted by default.
How Long Is It In Effect?
Under normal circumstances, an injunction can be put in place for up to four years, or for a shorter period of time if the petition would prefer that. In more extreme circumstances—for example, if a petitioner in a domestic abuse case demonstrates that the respondent has engaged in sexual assault—the injunction can be ordered for ten years.
As with the TRO, if the respondent violates the injunction by continuing to engage in abuse, by threatening to do so, or by contacting the petitioner, he or she can be charged with crimes.
Another very important aspect to TRO’s and injunctions is that a respondent against whom an injunction is ordered may have to surrender any firearms he or she owns or has in his or her possession to the sheriff. This requirement provides additional safety to the petitioner, but it is also something a respondent should be aware of in determining how to defend him or herself from a petition.
If you or your child have been subjected to abuse or harassment, the law can help protect you. You should contact an attorney experienced in prosecuting TRO’s and injunctions to discuss your options. Likewise, if someone has filed a petition for a TRO and injunction against you, you should contact an experienced Dane County or Wisconsin attorney, like the attorneys at Nicholson & Gansner, S.C., to help you understand your options.