Legal Ease by
Shane Givens
Nov. 23, 2010
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Regarding restraining orders This question came up not too long ago and it is one that I, along with Sheriff Jeff Shaver and Circuit Clerk Dwayne Amos, get all the time: “My daughter's ex-boyfriend can't accept the fact that my daughter doesn't want to see him anymore. How can we get a restraining order to keep him away?” Most people think a restraining order is simple to acquire. That idea, however, is far from true. A restraining order is a form of legal injunction. In other words, it is a court order that stops a person from doing something. The term is most commonly used in reference to domestic violence, harassment, stalking, or sexual assault situations. Contrary to popular belief, a restraining order must come from a judge. When I tell people this, they usually say, “OK, let's ask the judge for one.” A judge, however, cannot issue an order unless someone has filed an underlying case in court. This means that either the prosecutor (if the case is criminal) or a private party (if the case is civil) must file a warrant or petition and receive a case number. Therefore, either some type of crime must have been committed (domestic violence, physical abuse, etc.) or a civil lawsuit has to be in progress (a divorce, for example). Certain criminal actions may automatically carry a restraining order. For example, if someone has committed a violent crime against another person, a condition of their release will probably require them to stay away from the victim. Additionally, a victim of domestic violence can apply for what is called protection from abuse, which is filed in district court and requests that the judge enter a protective order against someone who is abusive. In civil cases, restraining orders are harder to obtain because the requesting party has to first meet several mandatory requirements. Regarding the question about the pesky boyfriend, no one can get a restraining order against him unless: a) he has committed some crime and/or has abused the daughter; b) he has been charged with that crime or the daughter has filed a petition for protection from abuse; and c) as a condition of bond, or by other court order, he has been ordered to stay away from the daughter. As always, this column is intended for general information purposes only. It is not intended, nor should it be construed as personal legal advice. The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise. Please e-mail questions for future columns to givenslaw@tds.net. |