Restraining Orders

Restraining Orders

 This Tip will explain the various types of “Restraining Orders” available to protect vulnerable people from violence and abuse.

MAGISTRATE COURT: This is a restraining order issued by a local county Magistrate that prohibits any and all contact with another person for Harassment in the First or Second Degree or Stalking.  This is a CIVIL COMPLAINT, NOT A CRIMINAL CASE.

This Order will restrain all conduct between the parties for one year.  It can be renewed for another year upon application.  

An offender can be fined $500 and/ or sentenced up to 30 days in jail.

PROTECTION FROM DOMESTIC ABUSE ACT: A request for a restraining order in Family Court may be made by any household members in need of protection or by any household members on behalf of minor household members.

The petition must allege the existence of abuse to a household member.  

In addition to a restraint on all contact and communication between the parties, a restraining order under this section can also:  

  1. Award temporary custody and temporary visitation rights with regard to minor children living in the home over whom the parties have custody; 
  2. Direct the respondent to pay temporary financial support for the petitioner and minor child unless the respondent has no duty to support the petitioner or minor child;
  3. Provide for temporary possession of the personal property of the parties and order assistance from law enforcement officers in removing personal property of the petitioner if the respondent’s eviction has not been ordered;  
  4. Award costs and attorney’s fees to either party;     
  5. A restraining order issued under this statute is in place for one year.  A violation of this order can subject a person to 30 days in jail and a $250 fine. 

FAMILY COURT ORDERSThese are restraining orders that are imposed by the family court pursuant to a domestic relations action for divorce or custody.

The Family Court can impose, or the parties can agree upon, certain restraints on their behavior that can remain in effect forever.

A violation of a Family Court restraining order will subject a person to 1 year in jail, a $1,500 fine and/or 300 hours of community service.  

A restraining Order in the Family Court issued pursuant to a domestic relations action is issued in two ways:

  1. It is issued by consent with the mutual agreement of the parties at either a Temporary or Final hearing; or 
  2. It is issued by the court either on its own initiative or upon the request of either party.

A restraining order imposed by the Family Court can involve any possible restraint on behavior that does not violate constitutional protections of freedom of speech or assembly. 

A person can be found in violation of a Family Court Order if it is determined that their contempt is willfull.  In other words, a person must have the means and ability to comply with the order and choose not to do so.

CRIMINAL PRE-TRIAL RESTRAINTSWhen a person is arrested they are taken before a county magistrate and bond is set. The magistrate must only consider two issues:  Is the criminal defendant a risk of flight, does the defendant pose a danger to the community.

The magistrate will set bond based upon their consideration of the two factors.  The magistrate may then also set certain conditions upon the release of the Defendant.  If the Defendant is charged with a crime against a person, then the magistrate will almost always impost a “no contact” restraint, prohibiting the Defendant from having any contact with the alleged victim in any form or manner. 

If the “no contact” order is violated, the victim should notify law enforcement, and the Defendant will be brought back before the magistrate and faces the revocation of their bond and incarceration in the county jail until their criminal matter is resolved.

All restraint that are part of a bond are ended and no longer enforceable once the criminal matter has ended, either by guilty plea, dismissal or jury verdict.

CRIMINAL POST TRIAL RESTRAINTSShould a criminal defendant go to court and plead guilty or be convicted by a jury verdict, he or she may receive a sentence involving a period of supervised probation.  This is called a “suspended sentence”.

A suspended sentence is exactly that:  a Defendant receives a sentence involving a period of incarceration, say 10 years in prison, but the prison sentence is suspended for a specific period of time (not more than 5 years).  This period of time is called “Probation”, and the Defendant is supervised by a Probation Officer.  

Often times a Defendant convicted of a crime against a person, will be required as condition of probation to have no contact whatsoever with the victim.

Should a person violate the “no contact” provision of probation, law enforcement should be notified.  The Defendant could be brought back to court and face a revocation of probation and the imposition of the suspended prison sentence.  

Sometimes a Defendant is released early from prison for good behavior.  In this case, he/ she is on Parole status and supervised by a Parole officer. 

Parole status is very similar to probation status, in that if the Parolee violates any condition of their release, they are taken before a judge and their Parole could be revoked, and the Defendant returned to prison to finish the remaining term of incarceration.  

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