Courts often issue restraining orders due to various reasons. A restraining order can be issued to end a public nuisance. Similarly, judges can issue a restraining order with the objective of controlling the actions and conduct of parties involved in a lawsuit. A restraining order may also be issued to protect domestic violence victims from violent acts.
A restraining order is sometimes referred to as a protective order or an order or protection. Whichever the name used, restraining orders are meant to prevent incidences of continued or threatening talk and domestic violence. A restraining order can be issued on the spot by relying on a sworn testimony of the individual who is applying for the order.
If a restraining order is filed against you, it stipulates what you should do, and what you shouldn’t. A restraining order is not always used in criminal or violent situations. It can also be used in non-criminal and non-violent cases. For instance, it may be issued to stop property owners from undertaking activities such as rock blasting, which is a nuisance to the public.
In civil contexts, restraining orders are typically referred to as temporary injunctions, and can end up being permanent injunctions. In criminal settings, courts issue restraining orders to prohibit abusive partners or spouses from either contacting or harming the other partner. Protective orders can also be issued to keep harassers or stalkers at bay.
Issuance of Restraining Orders
Under Arizona’s Penal Code, victims or would-be victims of annoying or potentially criminal activities can ask a judge to issue a restraining order. This will direct the aggressor to either do a specific act or stay away altogether. In a federal court, the object of a restraining order doesn’t necessarily have to be entitled to the notice of the application. This isn’t the case in state courts where notice is needed, though the timeframe may be short. As a result, the order may be dispensed especially in domestic violence situations.
For a restraining order to be issued, you must prove to the judge that it is necessary as far as the prevention of continuing or impending harm is concerned. In cases involving domestic violence, for instance, the victim must furnish the court with a sworn statement alleging facts, which ought to be supported by evidence that the plaintiff is facing severe or imminent harm.
Once it is proven that the plaintiff is facing imminent harm, the judge will issue an immediate restraining order without notifying the defendant. After the object of the restraining order (the defendant) receives a notice about the restraining order issued against him/her, the judge will summon both parties in a hearing meant to determine whether or not the restraining order should be made final.
During this hearing, the plaintiff is required to prove that the allegations levelled against the object of the restraining order are true. The truth of the claims is determined by the weight of the evidence presented by the plaintiff rather than the stricter standard of “beyond reasonable doubt” which is often used in criminal cases. Defendants are allowed to appeal against permanent restraining orders at a higher court.
The Longevity of Restraining Orders
In Arizona, there is a time limit on the duration of a final restraining order. Often, temporary restraining orders last until the second hearing. Even so, an extension can be granted since a judge can also make temporary orders permanent. Final orders can be amended if either the plaintiff or the object of the order asks the court to do so. However, the judge must agree to modify the order.
On the other hand, permanent restraining orders can last for up to five years. Despite their name, permanent orders do not last forever. Once the period has elapsed, you can petition the court to extend it.
Arizona’s laws on domestic violence and restraining orders are unique in the sense that judges can issue a restraining order not only when an incident of domestic order has occurred, but also when the plaintiff fears that one “might occur.” If the order is speculative in nature, its longevity may be determined by the amount of time that the imminent harm or threat will linger.
Step-By-Step Process of Getting a Restraining Order
You may require a restraining order for various reasons. If your spouse or partner is accusing you or your kids, or an ex-spouse/partner is stalking you, you will need to apply for a restraining order. In such cases and many others, a restraining order not only guarantees your safety but also gives you peace of mind.
Once you decide that a restraining order will keep you safe from imminent harm, you need to apply for one immediately. Knowing how to apply for a restraining order and how the police enforce the order is the surest way of getting that much-needed protection.
In as much as you can file for a restraining order on your own, it is advisable that you work with a lawyer so that the application can be expedited in order for you to get the protection as soon as possible. If you choose to file for a restraining order without the help of a lawyer, you should go through the Arizona courts website where step-by-step instructions and application forms are posted.
A lot of paperwork is involved during the application of restraining orders. Nonetheless, you should begin with the form needed to file for a temporary restraining order, which can be granted immediately.
To file a temporary restraining order, you only need to fill out forms that are available at local courthouses or online. You must describe the harassing or abusive behavior in detail. The filled out forms should then be taken alongside the identifying information about the aggressor and your ID to the local courthouse or any court that is designated to determine such matters.
After submitting your application, the court clerk will pass it together with your information to a judge who will then decide whether a temporary restraining order is suitable until a hearing is held. Thereafter, the judge will set a date so that a hearing for granting a permanent restraining order can be held.
After filing a temporary restraining order, the subject of the order needs to be notified about the date of the hearing. This is typically done by organizing with process servers to inform the defendant. The notice should include the date, time, and location of the hearing.
During the hearing, you must provide evidence of harassment or abuse so that your need for protection from the court can be substantiated. If the judge finds your evidence admissible and sufficient enough, he/she will issue a permanent restraining order. Often, this is done on the same day that hearing is held.
Who Enforces Restraining Orders?
The police typically enforce restraining orders that are directed at stalkers or domestic abusers. In Arizona, the penal code stipulates that the police shall enforce restraining orders by arresting violators. This is not usually the case because sometimes, police departments fail to take enforcement requests seriously.
Once you have been granted a restraining order, you are required to make several copies, one of which must be kept with you at all times. Similarly, you must leave one copy of the permanent restraining order with a responsible and trustworthy individual at places where the object of the order is directed to avoid. This might be your workplace or your kids’ school.
If the defendant doesn’t adhere to the terms and conditions of the restraining order, he/she is deemed to have broken the law. When this happens, you should notify the police immediately so that a report of the breach is filed. If necessary, you can enforce the restraining order by ordering the defendant to leave you alone. You can also ask the police to arrest that person if you feel threatened.
In Arizona, the law clearly states that the police can arrest defendants who violate the directives of restraining orders. The consequences of failing to follow the requirements of a restraining order include jail time and fines, or both.
Sometimes police fail to enforce restraining orders. When faced with such a situation, the best way forward is filing a civil lawsuit against the object of the order. This lawsuit should allege the invasion of your privacy among other wrongs. In consultation with your lawyer and a court prosecutor, you can also explore the possibility of pressing criminal charges against the violator if the restraining order.
Why a Restraining Order is a Serious Directive?
If a restraining order is issued against you, it is essential to understand that it is a serious matter, which deserves immediate attention. Failure to adhere to the directives stipulated in a restraining order can attract various sanctions and penalties. If you are divorcing from your spouse for instance and you end up being the subject of a restraining order, you could end up losing your visitation rights by violating the order.
However, defendants also have important rights. If the petitioner asks a judge to issue an order against you owing to an alleged incident of domestic violence, you are supposed to be notified about the application, unless the judge thinks otherwise. Besides this, you have the right to a hearing before a temporary restraining order is issued so that you can defend yourself.
During restraining order hearings, defendants also have the right to be represented by a lawyer. Unlike in other court proceedings, however, they aren’t entitled to court-appointed attorneys or free counsel. Rather than choosing to ignore a restraining order or its provisions, defendants are advised to seek information about their options and rights.
It is good practice to consult an attorney as well as participate in all court processes. Once an order is issued, you can face criminal charges if the protected individual alleges that you violated it. Upon the issuance of a temporary restraining order against you, you will be barred from possessing firearms. Likewise, restraining orders show up whenever background checks are undertaken.
What to Do When a Restraining Order is Filed Against You
When a temporary restraining order is issued against you, you will want to do everything in your power to ensure that it isn’t elevated to a permanent order after the second hearing. Even if you feel that the allegations that led to the issuance of a temporary restraining order are baseless, it is advisable that you obey it.
Once you are served with a temporary order, go through its directives, and ensure that you follow them. If you have been directed to avoid any contact with the petitioner, for instance, do just that. You should work with an attorney in preparation for the second hearing because indeed, the petitioner will want the temporary order to be elevated into a permanent one.
Besides adhering to the provisions of a temporary restraining order, you should gather physical evidence related to events or incidents that the petitioner has used as the basis of obtaining the order. Also, you should assemble documents that can be useful in the case including phone records that show where you were when the incident occurred, emails, and letters.
Before the second hearing, you should make a list of probable witnesses with the help of your lawyer. This list should include every individual whom you think could be having information relating to the incident, the petitioner, or the accusations levelled against you.
Collecting such evidence and witnesses can be useful in case the temporary restraining order was issued based on false allegations that the petitioner made against you. The evidence that you provide in court could show that you were not there when the supposed incident occurred. If a temporary restraining order has been issued against you for allegedly stalking the petitioner by texting or calling him/her repeatedly, your phone records or GPD records might show otherwise.
There are certain things that you shouldn’t do if you are facing restraining order. You shouldn’t destroy evidence, which you think might be used in court to make the temporary restraining order permanent. This could make you look suspicious besides attracting criminal charges.
You also need to avoid getting in touch with the petitioner or witnesses who are expected to testify against you during the hearing. Most importantly, you shouldn’t disregard the temporary restraining order and all its directives in any way.
In case you violate the terms and conditions of a temporary restraining order, the petitioner’s legal team can bring that up during the hearing. Motion can also be filled alleging that you violated the temporary order. This will make it harder for you to argue against the issuance of a permanent restraining order.
If you and the plaintiff have kids together, the temporary restraining order may direct you not to contact them. You might similarly be directed to only contact them under supervised conditions. For a parent, such conditions may appear extreme. Even so, avoid the temptation of getting around the order by visiting the kids at school or even at a relative’s home. If you do so, the petitioner can bring it up during the hearing.
Important Notes About Restraining Orders
Contrary to what many people think, a restraining order isn’t a divorce. Therefore, it doesn’t terminate your domestic partnership or marriage. This order is only issued if you have had an issue with your spouse/partner and you consequently end up feeling threatened. It is meant to protect you from harm rather than waging a rift between you and your partner.
A restraining order, whether temporary or permanent, doesn’t establish the paternity of your kids especially if you are not married to the petitioner. In addition, it is the judge who has the final say about the most appropriate orders to grant.
Restraining Orders and Criminal Records
If a restraining order has been issued against you, you must take note of the fact that it will be included in your criminal record. Any violation of a restraining order can result in criminal charges. Upon the issuance of a restraining order, your details will also be entered into the Arizona Domestic Violence Registry.
Since records pertaining to domestic violence and restraining orders cannot be expunged, they can have a disastrous effect on your future since they limit your chances of securing new employment especially government jobs that involve working with kids. Since restraining orders are typically issued to protect victims, they can be used to gain the upper hand in divorce cases or matters that involve child custody.
Contacting a Restraining Order Attorney Near Me
Working with an attorney will go a long way in helping you defend yourself against the issuance of a permanent restraining order. Having an experienced lawyer by your side can help you navigate the typically stressful situations that characterize the issuance of restraining orders. If a temporary restraining order has been issued against you, get in touch with Phoenix Criminal Attorney through 602-551-8092 for top-notch representation and legal advice.
