Restraining order
Barron's Business Dictionary:
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Restraining order
An order granted without notice or hearing, demanding the preservation of the status quo until a hearing can be held to determine the propriety of injunctive relief, temporary or permanent.
A restraining order is always temporary, since it is granted pending a hearing; hence it is often called a TRO or temporary restraining order.
A restraining order is always temporary, since it is granted pending a hearing; hence it is often called a TRO or temporary restraining order.
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West's Encyclopedia of American Law:
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Restraining Order
This entry contains information applicable to United States law only.
A command of the court issued upon the filing of an application for an injunction, prohibiting the defendant from performing a threatened act until a hearing on the application can be held.
A restraining order is an official command issued by a court to refrain from certain activity. Restraining orders are sought by plaintiffs in a wide variety of instances for the same reason: the plaintiff wishes to prevent the defendant from doing something that he or she has threatened. Restraining orders are used in a variety of contexts, including employment disputes, copyright infringement, and cases of harassment, domestic abuse, and stalking. All restraining orders begin with an application to the court, which decides the merits of the request by using a traditional test. Limited in their duration and effect, restraining orders are distinguished from the more lasting form of court intervention called an injunction. Generally they are sought as a form of immediate relief while a plaintiff pursues a permanent injunction.
A court submits a request for a restraining order to one of several tests. These tests vary slightly across different jurisdictions, but generally they involve the analysis of four separate factors: (1) whether the moving party will suffer irreparable injury if the relief is not granted; (2) whether the moving party is likely to succeed on the merits of the case; (3) whether the opposing party will be harmed more than the moving party is helped; and (4) whether granting the relief is in the public interest.
Usually, restraining orders are not permanent. They exist because of the need for immediate relief: the plaintiff requires fast action from the court to prevent injury. Seeking a permanent injunction can take months or years because it involves a full hearing, but the process of obtaining a restraining order can take a matter of days or weeks. For even faster relief, moving parties can seek a temporary restraining order (TRO). These are often issued ex parte, meaning that only the moving party is present in court. The TRO usually lasts only until an injunctive hearing involving both parties can be held.
Harassment of an individual can result in a permanent restraining order. This command of the court is also called a protective order. All states permit individuals to seek a restraining order when they are subjected to harassment by another individual or organization, typically involving behavior such as repeated, intrusive, and unwanted acts. Application for such an order usually is made to the district court. If granted, it prohibits the party named from initiating any contact with the protected party. In the 1990s most states passed anti-stalking laws designed to protect women from criminal harassment by men. These laws generally require that a plaintiff first secure a restraining order before criminal charges can be filed.
Wikipedia on Answers.com:
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Restraining order
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The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (December 2010) |
A restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions. Breaches of restraining orders can be considered serious criminal offences that merit arrest and possible prison sentences. The term is most commonly used in reference to domestic violence, harassment, stalking or sexual assault. In the United States, each state has some form of domestic violence restraining order law,[1] and many states also have specific restraining order laws for stalking[2] and sexual assault.[3]
Restraining and personal protection order laws vary from one jurisdiction to another but all establish who can file for an order, what protection or relief a person can get from such an order, and how the order will be enforced.
When the abuser does something that the court has ordered him or her not to do, or refuses to do something the court has ordered him or her to do, that is a violation of the order. The victim can ask the police or the court, or both, depending on the violation, to enforce the order.
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Restraining order provisions
All protective order statutes permit the court to order the abuser to stay away from someone, their home, their workplace or their school ("stay away" provisions) and to stop contacting them. Victims generally also can ask the court to order that all contact, whether by telephone, notes, mail, fax, email or delivery of flowers or gifts, be prohibited ("no contact" provisions). Courts can also order the abuser to stop hurting or threatening someone ("cease abuse" provisions).
Some states also allow the court to order the abuser to pay temporary support or continue to make mortgage payments on a home owned by both people ("support" provisions), to award sole use of a home or car owned by both people ("exclusive use" provisions), or to pay for medical costs or property damage caused by the abuser ("restitution" provisions). Some courts might also be able to order the abuser to turn over any firearms and ammunition he or she has ("relinquish firearms" provisions), attend a batterers' treatment program, appear for regular drug tests, or start alcohol or drug abuse counselling.
Many jurisdictions also allow the court to make decisions about the care and safety of any children. Courts can order the abuser to stay away from and have no contact with the children's doctors, daycare, school or after-school job. Most courts can make temporary child custody decisions. Some can issue visitation or child support orders. A victim can also ask the court to order supervised visitation, or to specify a safe arrangement for transferring the children back and forth ("custody, visitation and child support" provisions).
Burden of proof and misuse
Misuse of restraining orders is claimed to be widespread. Elaine Epstein, former president of the Massachusetts Bar Association, has remarked, “Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply…In many cases, allegations of abuse are now used for tactical advantage.”
A 1995 study conducted by the Massachusetts Trial Court that reviewed domestic restraining orders issued in the state found that less than half of the orders involved even an allegation of violence. Similarly a West Virginia study found eight out of 10 orders were unnecessary or false.[4] The low burden of proof for restraining orders has led to some high-profile cases involving stalkers of celebrities obtaining restraining orders against their targets.
Effectiveness
Experts disagree on whether restraining orders are effective in preventing further harassment. A 2010 analysis published in the Journal of the American Academy of Psychiatry and the Law reviewed 15 U.S. studies of restraining order effectiveness, and concluded that restraining orders "can serve a useful role in threat management."[5] However, a 2002 analysis of 32 U.S. studies found that restraining orders are violated an average of 40 percent of the time and are perceived as being "followed by worse events" almost 21 per cent of the time, and concluded that "evidence of [restraining orders'] relative efficacy is lacking," and that they may pose some degree of risk.[6] A large America-wide telephone survey conducted in 1998 found that, of stalking victims who obtained a restraining order, more than 68 per cent reported it being violated by their stalker.[7] Samuel Goldberg, a Boston attorney specializing in partner abuse cases, remarks that restraining orders are awarded so casually that “they are not taken as seriously as they should be.”
Threat management experts are often suspicious of restraining orders, believing they may escalate or enrage stalkers. In his 1997 book The Gift Of Fear, well-known American security specialist Gavin de Becker characterized restraining orders as "homework assignments police give to women to prove they're really committed to getting away from their pursuers," and said they "clearly serve police and prosecutors," but "they do not always serve victims."[8] The Independent Women’s Forum decries them as “lulling women into a false sense of security,” and in its Family Legal Guide, the American Bar Association warns “a court order might even add to the alleged offender’s rage.”[4]
Jurisdictions
United Kingdom
In the UK, a non-molestation order is Part IV Section 42 of the Family Law Act 1996[9]. Non molestation orders are a type of injunction used to protect a partner or ex-partner from hurting, intimidating, harassing, etc., you or your children. In the UK, breaching this order is a criminal offence.[10] Under the Domestic Violence Crime and Victims Act, 2004, same-sex couples experiencing same-sex domestic violence and abuse[11] are able to get protection with a non molestation order. When in conjunction with domestic violence, the non molestation order is granted under legal aid irrespective of income.[12]
United States
Restraining orders may also be enforced across state lines, in accordance with the Full Faith and Credit Clause of the U.S. Constitution[13] via the National Crime Information Center database.[14] Some states (for example, Mississippi[15]) may also call a restraining order a peace bond and are similar to ASBO laws in the UK. Minnesota law provides for an Order for Protection (OFP) and a Harassment Restraining Order (HRO).[16]
See also
- Anti-Social Behaviour Order (UK)
- Anti-Social Behaviour Injunction (UK)
- Peace bond (Canada)
- Anti-suit injunction
- Anti-Injunction Act
- Burden of proof
- Interim order
References
- ^ http://www.abanet.org/domviol/docs/DV_CPO_Chart_8_2007.pdf
- ^ http://www.abanet.org/domviol/docs/StalkingHarassment_CPO_Chart_8_2007.pdf
- ^ http://www.abanet.org/domviol/docs/SA_CPO_Chart_8_2007.pdf
- ^ a b http://www.dailyfinance.com/story/taxes/the-high-price-of-restraining-orders/19368794/
- ^ Benitez, MD, Christopher T.; Dale E. McNiel, PhD and Renée L. Binder, MD (2010). "Do Protection Orders Protect?". Journal of the American Academy of Psychiatry and Law. 3 38 (3): 376–385. http://www.jaapl.org/cgi/content/full/38/3/376. Retrieved 14 June 2011.
- ^ Spitzberg, Brian H. (October 2002). "The Tactical Topography of Stalking Victimization and Management". Trauma, Violence and Abuse. 4 3 (4): 261–288. http://tva.sagepub.com/content/3/4/261.full.pdf+html. Retrieved 14 June 2011.
- ^ Tjaden, P.; Thoennes, N. (April 1998). "Stalking In America: Findings From the National Violence Against Women Survey". National Institute of Justice and Centers for Disease Control and Prevention (NCJ 169592): 1–19.
- ^ De Becker, Gavin (1997). The Gift Of Fear And Other Survival Signals That Will Protect Us From Violence. New York: Dell Publishing. pp. 223–229. ISBN 0-440-22619-8.
- ^ http://www.legislation.gov.uk/ukpga/1996/27/section/42
- ^ http://www.sentencing-guidelines.gov.uk/docs/breach_of_protective_order.pdf
- ^ http://www.broken-rainbow.org.uk
- ^ http://www.womensaid.org.uk/domestic-violence-survivors-handbook.asp?section=000100010008000100330002
- ^ http://www.fullfaithandcredit.org/aboutffc.asp
- ^ http://fighting-a-restraining-order.e-tomes.com/fighting-a-restraining-order-across-state-lines.html
- ^ http://michie.com/mississippi/lpext.dll?f=templates&fn=main-h.htm&cp=
- ^ "HRO FAQs". Minnesota Judicial Branch. http://www.mncourts.gov/district/2/?page=1174. Retrieved February 15, 2012.
External links
- http://www.abanet.org/domviol/docs/DV_CPO_Chart_8_2007.pdf
- Restraining Order signed by Dr. Kenneth Blocka on file with the Queen's Bench Court in Saskatoon, Canada.
- Things You Need to Know Before Asking for a Restraining Order by the Connecticut Network for Legal Aid
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Barron's Business Dictionary
Dictionary of Business Terms. Copyright © 2007 by Barron's Educational Series, Inc. All rights reserved.
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West's Encyclopedia of American Law
West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. All rights reserved.
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