209A Protective Orders or Restraining Orders

  • One of the most useful options available to a survivor of domestic violence is a 209A Restraining Order (RO) or protective order. This is a civil court order available to survivors through both district (criminal) and probate (family) courts.
  • Because probate courts are in a better position to assess and enforce issues concerning child support, visitation, and custody, any subsequent order that is issued by a probate court concerning these matters will supersede a district court issued RO.
  • In order to be eligible to request a RO, the relationship must meet certain criteria. The parties must be related by marriage or blood, living together, the parents of a mutual child, or in a significant dating relationship. Additionally, the survivor must report to the judge sufficient reason to believe that they or their child will be physically harmed without the RO.
  • A RO is only a piece of paper. It is not a guarantee of safety. In fact, survivors are most at risk when they take steps to separate from their abusive partners. This is a high risk time for the survivor. It is critical that safety planning be done and that the survivor takes some extra precautions for their and their children's safety.
  • A restraining order can include the following provisions:
    • Refrain from abuse-orders the abusive partner to stop abusing the survivor.
    • Vacate order-requires the abusive partner to move out of and remain away from the residence of the survivor and turn over any copies of the keys to the residence.
    • No contact order-requires the abusive partner not to contact the survivor in person, by phone, by mail, or through a third party. This also often includes a certain distance that the abusive partner is to remain away from the survivor, such as 25 yards. Additionally, there is a space in which the judge can write an additional location that the abusive partner is not allowed to go, such as the survivor's work place.
    • Temporary custody of children-grants temporary physical and legal custody of the shared minor children to the survivor. If the abusive partner goes into probate court and obtains a new custody order granting him or her custody, this will supersede a RO custody order.
    • Temporary child support-provides for temporary child support to be paid by the abusive partner. Many criminal court judges are uncomfortable issuing this option because they do not have a mechanism to determine a fair amount for the child support. A survivor may be more successful seeking such an order in probate court.
    • Additional requests-there is space for the judge to write in additional conditions that the victim requests, such as returning personal property.
    • A survivor can keep her or his address confidential, by requesting this when filling out the application. This is particularly helpful for survivors who have moved or will be moving to a new address to escape the abusive partner. Additionally, people who have a restraining order taken out against them must relinquish any fire arms and FID cards that they own. This includes people whose jobs require them to carry a gun, such as a police officer, although a judge can grant an exception.
  • A Temporary Restraining Order (TRO) can be obtained 24 hours a day.
    • During the night, on a weekend, or on a holiday, an Emergency Restraining Order can be obtained by calling or going to the police station. The survivor must demonstrate that he or she is in imminent danger of harm. The police will contact an on-call judge, who will speak to the survivor by phone and decide whether to issue an ERO. If an ERO is granted, it is good only until the next day that the court is open. At that time, the survivor must appear in court and request an extension.
    • During non-holiday week-days, a survivor can go to their local district or probate court and inform the clerk that they would like to obtain a TRO. In the district court, the clerk will direct the survivor to the Victim Witness Advocate who will assist the survivor with the paper work, help her or him prepare to talk with the judge, and stand with the survivor during the hearing. The role of the Victim Witness Advocate is discussed in more detail in the next section.
    • After completing the application for a restraining order, the survivor will go in front of the judge and explain their reason for seeking an order. Once the judge decides to grant the TRO, the survivor will wait for the clerk to process the paperwork and obtain his or her copy of the TRO.
      o It is critical that the survivor carry this piece of paper with them at all times, in the event there is an incident and the police are called. Additionally, the survivor should distribute copies of the TRO to the schools and/or day cares where his or her children are. This is especially important if there is a custody order as part of the RO.
    • A TRO is only good for 10 days. During this 10 day period the abusive partner should be served with a copy of the TRO. A survivor can facilitate this process by providing the court and the police with addresses where the abusive partner is likely to be.
  • After 10 days there is a hearing to obtain a Restraining Order.
    • At this hearing the abusive partner is given an opportunity to present his or her side of the story. The survivor will have to reiterate in front of the abusive partner the reasons why she or he sought the TRO.
    • The judge will make a decision based on whose story he or she finds most credible. The judge is permitted through the law to extend the TRO for up to one year, at which point it is referred to as a Restraining Order, no longer temporary.
  • At the end of the one year, there will be another hearing date. The survivor is able to return to court and request additional extensions. Generally, the survivor will need to demonstrate a continued state of risk in order to qualify for the extension.
    • The Victim Witness Advocate can again serve as a support and a resource for this hearing. It is important for the survivor to consider taking some additional safety measures for the court hearing. These can include such things as a police escort to the court house and into the court room, bringing a friend with them, or staying in the district attorney's office until her or his case is called.