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Monday, September 17, 2018

5 Reasons Why Restraining Issues are Ordered

5 Reasons Why Restraining Issues are OrderedThere are a variety of reasons one would request a restraining order and in a divorce action, they are more common than you might think. In most jurisdictions, parties are entitled to a restraining order if there are 2-3 events, the most recent of which must have been within a recent proximity to filing your request for a TRO. You are unlikely to receive a restraining order if the incident for which you are complaining occurred last year or even 6 months ago. The court is looking for proximity of time as it relates to the event and skeptical of a request for a TRO regarding a stale allegation. Here is the hypotheses: You must not be that afraid if you waited "x" amount of time. Common conduct that usually will give rise to a restraining order is: Any type of physical violence, threats of physical violence, death threats, stalking and following, harassment and even emotional abuse that places a reasonable person in fear of their safety. Restraining orders are usually granted on a temporary basis pending a full evidentiary hearing or trial. Once the factors have been proven (beyond a reasonable doubt in most jurisdictions), a permanent order will be granted from one to five years, for example. In a divorce action, they enter the scene in a variety of ways:

1. File Temporary Restraining Order first: A married couple get into a domestic altercation. This might involve physical violence or verbal threats, but whatever the case, a restraining order may be the first document filed by the victim spouse. Once a restraining order is filed, it triggers a series of events involving hearings and court orders. If there are children, it will also trigger a custody action in most jurisdictions.

2. File Temporary Restraining Order Once Action is Filed: Often a previously civil couple will need a restraining order after they have filed for divorce. Divorce actions bring about intense, emotional feelings that can cause people to behave in uncharacteristic ways. Sometimes domestic violence, threats and stalking behavior will ensue once a divorce action is filed initiated by a disgruntled, jealous or unhappy spouses.

3. File Temporary Restraining Order Once Case Has Concluded: Again, any little incident can escalate into an argument or fight. Sometimes couples will behave normally throughout the duration of the divorce litigation and the matter might even conclude. However, at some point in the future a new incident occurs (whether it is related to child custody, money or a new girl/boyfriend) that creates new conflict. If emotions are high and parties are unable to manage their anger, it may give rise to conduct leading to a restraining order.

4. Involuntary Restraining Order: Sometimes, however a restraining order will ensue even if neither party has requested one and begins as a protective order (an emergency form of a restraining order issued by the police). This occurs when there are children involved and a violent event occurs in the presence of the minors. It is assumed that parents who perpetuate domestic violence are placing their children in danger and typically the perpetrator will find him or herself on supervised visitation if they have assaulted the other parent in the presence of children. On the flip side, the state (or Child Protective Services/Department of Health and Human Services) will actually require the victim parent to file a restraining order (protective orders usually have an extremely short duration). If the victim parent does NOT file a restraining order, it is assumed that that parent is placing their children in danger by "failing to protect" them from the perpetrator. The restraining order, while just a piece of paper, is meant to protect both parent and child(ren) from future abuse until the perpetrator has participated in parenting classes, anger management and/or drug and substance abuse counseling, for example, or whatever might be ordered by the court. As you can see, this type of TRO may arise in an otherwise intact family that is not contemplating divorce at all.

5. Unmarried Couples: A restraining order may also be filed amongst un-married couples if the legal requirements are met.

The penalties and consequences of having a restraining order are surely harsh. All TRO's go into a centralized law enforcement tracking system to alert police to the existence of a current TRO. Therefore, if you are pulled over for a simple traffic violation, your TRO is visible for law enforcement to see. Furthermore, you may be restricted from going to the places you used to frequent if the protected party is there causing a burden upon you to avoid violating the TRO at all cost. This situation is compounded by the existence of children, custody orders and how to navigate around the orders when there is regular contact with an ex-spouse without violating those orders.

Regardless of the reason a temporary restraining order was initiated, only three pieces of advice can be offered: (1) If you are the victim of domestic violence, do everything you can to protect yourself and your children because there is no excuse for this type of treatment. (2) If you have an anger problem, watch your temper and aggression and avail yourself to the many programs out there designed to help men and women manage hostility. But on the flip side, (3) Understand that a false application for a restraining order based upon false information is considered perjury which may constitute a felony in most states.

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