protective or restraint order?!?

Question

whats the difference?
all they said was that you need a lawyer for a restraint order and you dont need one for the protective order. Also a prot order lasts for 2 yrs.. how long does a restraint order last?

Answer 1

In our state the Prosecuting Attorney files for protective orders in domestic violence cases. These can be issued before the perpetrator comes up for trial on charges. Once the Protective Order is issued it falls under the domestic violence act and arrest can be made when the perpetrator violates it and it is a separate charge. A restraining order is issued by a judge during sentencing. If the person violates that order the court has to be solicited and the person brought back before the judge where the judge may or may not find them in contempt. An immediate arrest can not be made for violating the restraining order, but a person can be arrested within 12 hours of violating the protective order. Hope this helps. If the situation qualifies the protective order gives greater police powers. Good Luck.

Answer 2

Go to the following website /www.lawhelp.org/documents. This explains what a protective order is and the steps to follow to put one in effect. Also, go to the following site www.saccourt.com/restorder/dom_violence/domestic.asp for info about restraining orders. This one is based in California. Check with your local court clerk's office or DA's office also. They are a wealth of info. on just about any aspect of law.

Answer 3

The laws vary by state.

Here the most definitive, and yes exhaustive, description of how protective/restraining orders work in Massachusetts.

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Restraining Orders

(Based on the www.janedoe.org section on Restraining Orders)

A restraining order in Massachusetts, also called a 209A protective order, is of two basic types. One is called a “no contact order” which means that your abuser is not allowed to come within a specified distance to you, or near or into specified locations, such as your home or workplace.

The second type is called a “no abuse order” which means the abuser may have contact with you but is ordered not to abuse you. Restraining orders frequently combine both types – no contact and no abuse.

A restraining order is one option to consider in seeking safety from an abuser. The information below describes a restraining order and answers commonly asked questions such as how to get one, how it is enforced and how to make a decision about seeking an order.

A restraining order is only one element of a larger safety plan. It is important to make and follow a safety plan in addition to obtaining a restraining order. (See Safety Planning)

Eligible Relationships

The law for restraining orders (209A) covers those people who are or have been in any of the following relationships:

§ Living together in the same household
§ A substantive dating relationship
§ Related by blood or marriage
§ Have a child in common
§ Engaged or married

(See Massachusetts’ Legal Definition of Domestic Violence for more information about the relationships covered by the law.)

How to Get a Restraining Order

A restraining order is free, and you don’t need a lawyer to obtain one. A legal advocate can assist in getting a 209A and his or her services are free from a District Attorney’s Office in Massachusetts. (See Victim Services – State Sponsored) Contact GMDVP Client Services for our legal advocacy if you live in Massachusetts.

Steps to get a restraining order:

v Go to the courthouse in your local area (preferably a district court), ask where to file for a restraining order and complete an affidavit requesting the order.

v You will then need to go before a judge, who will ask you questions about your safety. Bring any documentation that you have regarding your abuse with you, for example medical records or police reports. The judge has the authority to grant a temporary (10-day) restraining order at that time. You will be given a copy of the order to carry with you at all times. Make multiple copies of the order and keep them in various locations, such as a friend’s house, at work and in your automobile. Also, if possible, keep a photograph of the abuser with the order to show the police if the abuser violates the order.

v Bring to court as much information as you have about the abuser’s whereabouts, including home address, work address, family members’ addresses and other places where he /she may be located, as well as the abuser’s Social Security number if you know it.

v The court will tell the police that the restraining order has been issued. However, it is often useful for you to deliver a copy of the order to the police yourself. The police will then serve the abuser with the order. Do not do this yourself. The order is not in effect until the abuser is served.

v If there is a vacate order (see below), the police inform the abuser of this order and enforce it. Do not do so yourself. The police arrange a time with the abuser to meet him/her at your home. The abuser has a limited amount of time to gather personal items, and he/she is at all times accompanied by the police. You will be informed of the date and time. You may or may not wish to be present. You may want to prepare your own personal belongings in advance.

v Within 10 days of the issuance of the temporary 209A you will attend another hearing where your abuser has the right to be present and to tell his/her side of the story. Legal counsel may accompany the abuser.

This hearing may be emotionally difficult for you. It helps to have an advocate present for support and to help guide you through the process. You also have the right to bring legal counsel. You will have an opportunity to tell your side of the story at this hearing. The judge at this time can extend the 209A restraining order for up to a year. The judge also can grant other court orders explained below.

v To get an emergency protection order on holidays, nights or weekends, call the police. They will contact an emergency response judge. Emergency restraining orders are good only until the next day court is in session.

How Does A Judge Decide Whether to Issue the Order?

Under the law, the judge needs to determine:
• If the relationship is covered by the law (see above);
• If the victim has shown “a substantial likelihood of immediate danger of abuse”; and
• If the abuse is one or more of the following types:
§ attempted to cause you physical harm;
§ caused you physical harm;
§ placed you in fear of imminent serious physical harm; or
§ caused you to engage involuntarily in sexual relations by force, threat of force or duress.

Note that the law governing restraining orders does not cover other types of abuse, such as emotional, identity or financial abuse, though other laws may do so. (See Criminal Behavior and Abuse)

A Restraining Order Can Do More than Protect You

Any of the following provisions that apply to your situation may be added to the basic order:
§ Restraining Order – Your abuser must not come near you or abuse you again. In Massachusetts, all restraining orders require that the abuser surrender any firearms and licenses to carry a firearm.
§ Vacate Order – Your abuser must move out of a shared residence. As noted above, the police deliver the Vacate Order to the abuser and supervise his/her departure from your shared home.
§ Custody Order – If you share custody of children with your abuser, you may receive temporary custody of these children.
§ Child Support Order – If you share custody of children with your abuser, he/she may be required to provide temporary financial support for the children.
§ Restitution Order – You may receive re-payment for lost wages, medical expenses or other costs and damages related to the abuse from your abuser.

Violation of a Restraining Order
Violation of an order is a criminal offense and penalties can include the abuser being:
§ Taken immediately into custody or to jail;
§ Charged with a misdemeanor or felony crime, and if convicted, serving prison time and/or paying a fine; or
§ Given a suspended sentence and ordered to attend a batterer’s intervention program.

A restraining order is in effect while you and your abuser are in a courthouse. If it is a no contact order, the abuser may not have contact with you even in the courthouse, such as speaking to you, gesturing to you, talking to you through a friend or family member, or communicating with you in any way.

Violation outside the courthouse of a no contact order may include sending flowers, letters, e-mails, text messages, phone calls or gifts. No contact means no contact, of any kind. He/she can not make contact with you nor can you make contact with him/her.

If an order if violated:
§ Contact police and report the violation immediately.
§ Call 911, in an emergency.
§ If a violation occurs in a courthouse, alert the court officer or court staff.
§ Contact your client advocate for advice about how to enforce the order or if you have problems getting it enforced.
§ Keep a journal and document any contact or violations of the order.

When considering whether to obtain a restraining order, you need to decide whether you are willing to have the abuser arrested if he/she violates the restraining order. If you are not, there is little point in securing the order.

Copies of the Restraining Order

Consider giving copies of the restraining order (and abuser’s photograph) to such people as:
§ Police departments where you work or visit friends and family
§ Your or your children’s service providers, such as therapist, health care provider, coach or after school care
§ Members of your support system, such as friends and family
§ Your attorney
§ Your client advocate

Pros and Cons of Securing A Restraining Order

There are reasons for and against securing a restraining order. Every person’s circumstances are different. Some of the Pros and Cons are listed below, but there can be others depending on your situation. You may want to think through your pros and cons with a GMDVP Client Advocate.

Pros of Securing a Restraining Order:
§ Most abusers do respect restraining orders (but see below).
§ A restraining order does provide some level of protection because if the abuser violates the order, you can call the police. They will arrest the abuser for a violation. If the police who respond to a call from you do not arrest the abuser, call 911 to ask that the abuser be arrested.
§ A no contact restraining order offers some protection for your children from the abuser.
§ A vacate order can remove the abuser from your home when he/she lives with you. This is most beneficial when the abuser lives in your home that you own or on which you solely hold the rental agreement (but see below).
Cons of Securing a Restraining Order:
§ Getting the restraining order may make the abuser angrier.
§ Some abusers do violate restraining orders (See Warning below.)
§ It is likely that through the process of securing an order you will reveal publicly your sexual orientation or transgender status. You may not wish to do so.
§ If you reveal your sexual orientation or transgender status to members of the law enforcement and judicial systems, you may be harassed or refused assistance. Such behavior is neither ethically acceptable nor legal. If this happens to you, contact a GMDVP Client Advocate to explore your options for ensuring your access to services.
§ If you are living in your abuser’s home (one that he/she wholly owns or solely holds the rental agreement on), securing a vacate order to have him/her removed from his/her home may raise his/her level of anger and prompt retaliation.
§ It is known to have happened that a court has refused to issue a restraining order because the abuser and the abused are two men. And it is known to have happened that a court has issued retraining orders against both parties. Neither of these outcomes is acceptable. A legal advocate or a Victim Witness Advocate from a District Attorney’s Office (See Victim Services – State Sponsored) can be very helpful in preventing or resolving such situations.

For more information, contact a GMDVP Client Advocate.

Warning
A restraining order is only a piece of paper; it provides some safety if the abuser is willing to respect it. A restraining order can not protect a person from an abuser who chooses to be violent. In fact with some abusers, a restraining order may provoke more abuse, including physical violence that sometimes can be deadly. In these cases it may be best not to get a restraining order. You are usually the best judge of how likely your abuser is to respect a restraining order and to be violent. When considering a restraining order ask yourself this simple question: Will a restraining order help make me safer?

Here are some characteristics of abusers who are more likely to respect an order (A) and later there are questions to help you determine how likely it is your abuser will be violent (B).

A. Abusers more likely to respect restraining orders:

• Tend to be more rational and reasonable
• Have less violent or non-violent histories
• Have more to lose if they are arrested, such as a job, social reputation or occupational status
• Have less of an emotional investment in the relationship, for example have only been in a relationship for a few weeks or months versus having been in a relationship for years and seeing the partner as a very important part of their life

B. Questions to ask to assess how likely the abuser is to become violent if you leave or get a restraining order:

1. Has the abuser threatened to hurt you if you try to leave?
2. Does the abuser have a weapon, such as a gun or knife? Has he/she ever threatened you with a weapon or used a weapon on you? Does he/she have a fascination with or deep interest in weapons?
3. Has the abuser ever been arrested before? Does the abuser have a criminal record? Is the abuser afraid of police and the courts?
4. Has the abuser hurt your pets, or at any time hurt his/her pets or other animals?
5. Does the abuser use alcohol or drugs (in general, the more use, the more risk)?
6. Does the abuser seem suicidal or threaten suicide?
7. Does the abuser seem “crazy” to you?
8. Has the abuser been violent in prior relationships?
9. Has the abuser been violent with any other people?
10. Has the abuser stalked you or anyone else?
11. Has the abuser forced you to engage in sexual acts against your will?
12. Does the abuser have strong mood swings, such as from angry violence to being unusually calm?

Again, you are the best judge of your situation.