Domestic Violence is getting more and more news coverage these days. It’s on the TV, in the papers and discussed on talk radio. Even sports talk radio. Our office has represented people on both sides of Domestic Violence charges. In either case, it is important to have adequate representation.
If someone believes that they are a victim of domestic violence, they may obtain assistance from the civil court, via a restraining order and a civil protection order, or the criminal court, via a protective order.
Civil Restraining & Protection Order
There needs to be some relationship between the parties or they must have lived together to apply for a restraining order.
The application has the victim confirm that:
I have been subjected to a continuous threat of present physical pain or physical injury, staking or a pattern of threatening….”
If sufficient allegations are listed in the affidavit, a temporary restraining order will be issued and served on the person accused of causing the harm. Shortly thereafter, a hearing is held to see if the restraining order should be continued. If the alleged victim does not prove there is a “continuous” and “present” threat, the Judge must deny the application. If the alleged victim does not prove the threat involves physical pain or injury, the Judge must deny the application.
There is also a new Application for “Civil Protection Order” for those that have been subject to Sexual Abuse, Sexual Assault and / or Stalking.
Criminal Protective Order
A criminal protective may be ordered when an arrest is made and there is a relationship or prior relationship between the alleged victim and the person arrested. The parties do not have to reside together.
Protective orders are issued with more frequency and fewer requirements than restraining orders. A mere verbal dispute can lead to an arrest for breach of peace or disorderly conduct even if all parties and the police agree that physical violence was neither present nor expected. If the person arrested has or had a relationship of some kind with the alleged victim, then it is treated as a domestic violence case. A protective order will be issued. Cases treated as domestic violence, regardless of the charge, are taken very seriously by the court and take a lot of time and effort to resolve. The lives of the alleged victim and suspect are disrupted during this time. This process needs to be navigated very carefully to limit the impact on everyone.
There are serious consequences for people who violate both restraining orders and protective orders. Violating a restraining order is a Felony with the possibility of 5 years in jail, even for a first violation.