Rob Teir

PROTECTIVE ORDERS AND RESTRAINING ORDERS:

What are they and what is the difference?


Both lawyers and the rest of us frequently use terms like "protective order" and "restraining order" interchangeably. At other times, we draw a distinction between the two terms, but not necessarily the right one.

The two terms have different meanings in Texas divorce litigation, and anyone getting a divorce, contemplating a divorce, or the subject of a granted divorce, should be familiar with the difference. Only with that familiarity will you know what your options are. And, if there is a Court Order, knowing the difference means knowing what the parties have been ordered not to do.

WHAT IS A PROTECTIVE ORDER?

A protective order is, by far, a more extreme ruling of the Court, and is used to try to prevent family violence. Yet, it is precisely this kind of order that many people refer to, incorrectly, as a "restraining order." The error is understandable. After all, these orders do attempt to restrain people.

The purpose of a protective order is to protect the life, limb, and emotional well-being of people who have been the victims of family violence. Battered spouses or emotionally-abused spouses may apply for them. In addition, parents of abused children can apply for them.


WHAT DOES A PROTECTIVE ORDER DO?

Protective orders usually prohibit one family member from contacting, or getting near, one or more other family members. For instance, a protective order may prevent an abusing spouse from coming within 500 feet of the abused spouse, or within 500 feet of the children. If such a geographic restriction is included in a protective order, the protective order's circle of prohibition (the area where the person who is the subject of the Order cannot go) moves with the person (or people) protected. Thus, a spouse with a protective order can have a 500 foot circle around them that their spouse cannot enter, no matter where he/she goes.

Protective orders usually have additional terms, including a general order not to commit acts of family violence.

Protective orders are big deals – and create what is really a new criminal law that applies to one person, the subject of the order. Violations can subject a person to contempt of court, but, far more importantly, violations are a criminal offense. Indeed, a protective order will contain language addressed to law enforcement officials, telling them to take violating offenders into custody. Here in Texas, law enforcement officials can generally be counted on to do exactly that.


APPLYING FOR A PROTECTIVE ORDER

Both husbands and wives can apply for a protective order. More protective orders are issues against men than against women.

Because protective orders restrain people's liberty – by limiting where they can go, who they can call, who they can talk to, etc. - they are rare, and a person asking for them has to meet a high standard.

First, no one can get a protective order in Texas just on the belief, suspicion, or fear that family violence may occur. Rather, the person who is the to be object of a protective order must have already committed one or more acts of family violence and the person asking for a protective order must be able to prove it. However, the evidence that can prove family violence can be the victim's testimony, or the testimony of a witness.

The more evidence a party asking for a protective order has, the better chance of getting the protective order. Going to a doctor or hospital, after a prior assault, for instance, is good evidence that family violence has occurred. Similarly, a criminal arrest is helpful, but is not required.

The law recognizes that a person who has engaged in family violence in the past is more likely to do so again, as compared to a person who has never done so. But, the past is not a guarantee of future behavior. Therefore, a person asking for a protective order has to show past family violence, and show the court that family violence is likely to occur in the future.

The more evidence a party asking for a protective order has, the better chance of getting the protective order. Going to a doctor or hospital, after a prior assault, for instance, is good evidence that family violence has occurred. Similarly, a criminal arrest is helpful, but is not required.


DO I NEED A LAWYER?

You do not need a lawyer to apply for a protective order. But, a lawyer is a very good idea if you think you need such an Order.

An application for a protective order has complicated requirements, and the standard of proof is high. It is far better to have a lawyer on your side, to draft the request for a protective order, and to go to court and argue for the protective order on your behalf, including asking you questions in court, "on the stand." Your lawyer is also able to cross-examine the person claiming that there is no need for such an Order.


YOU DO NOT NEED A PROTECTIVE ORDER TO CALL 911

Although the police often respond more quickly and attentively to people who refer to a protective order, a protective order is not needed to call the police if someone is in danger. If you are being threatened with violence, or are scarred that violence may shortly occur, get help – call 911, protective order or not.

The reason the police respond more efficiency and effectively to protective order violations is that they know from experience that convictions for family violence are rare. Proving that someone violated a court-issued protective order, on the other hand, is relatively easy.


PROTECTIVE ORDER PROCEDURES

Protective orders should be applied for in the County in which the applicant lives, or the County in which the subject of the Order lives.

Protective order can be requested from a Court even before the other party has been served with the divorce lawsuit, or served with the Order. Courts in Texas can grant a protective order for a party who appears before it and shows proper evidence for the Order, for 14 days. If good cause is shown, the 14 days can be extended, but only once, without the object of the order having a chance to be heard in court.

Once a Court grants a protective order, the person who is the object of the Order must be served with it – a requirement that is on top of the requirement to serve them with a divorce lawsuit.

The person who is the object of a protective Order will then have an opportunity to argue that there is no justification for the Order. The Court will then decide whether to extend the Order, such as for the length of a divorce proceeding. Eventually, the Court will decide how long the protective order should last, or whether it should last. No protective order can last for more than two years.


WILL PROTECTIVE ORDERS PROTECT ME?"

Not necessarily. While protective orders are serious matters, and are generally taken very seriously, they are, in the end, a piece of paper. A violent person can choose to ignore a protective order, take their chances of going to jail, and attack someone. Just as laws against murder do not stop all murders, protective orders do not stop all people from committing further acts of family violence.

Protective Orders are useful, because they often stop people, and because they lead to better police responses. However, no one should consider themselves 100% safe because they succeeded in their efforts to get a Protective Order.

WHAT IS A "RESTRAINING ORDER"

If that is a protective order, what, then, is a "restraining order." This term is used to describe the set of orders the court imposes on one or both of the parties in a divorce, which regulate their conduct while the divorce is pending. Most of the time, a restraining order prevents a divorce litigant from such things as emptying the bank account, from incurring new debt, from confiscating mail, from using harsh or obscene language in talking to the other party, and from talking badly of the other party in front of children. Restraining orders can include many items, and sometimes have dozens of separate prohibitions. Unlike protective orders, restraining orders are routine in Texas divorces.

Courts generally treat requests for restraining orders with a very open-mind. If the requested Orders are reasonable, and if they are going to apply to both spouses in a divorce proceeding, the chances of getting them from the court are very good.

Restraining orders are not enforceable by the police or Sheriff's Department. Rather, violations of these Orders can be brought to the attention of the Court, which has the power to order an offender to jail. But, Texas courts are more likely, at the first violation, to simply admonish the offender and tell them to behave better in the future. The Court also has many interim sanctions, including fines.


CONCLUSION

Both protective orders and restraining orders are available from the Texas courts. Both restrict the liberty of the people they reach. However, protective orders are far more restrictive, and have far greater consequences in the event of a violation.

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