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How do I get a Restraining Order?

Nov 16

This question came up not to long ago, and it is one I, along with the Sheriff and Circuit Clerk 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 that a restraining order is something that you go and pick up at the Sheriff’s office or a form you get from the Circuit Clerk or your lawyer. This idea, however, is far from true. A “restraining order” is a form of legal injunction; or, in other words, 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. Neither the Sheriff, Circuit Clerk, or an attorney can issue a restraining order on their own.

When I tell people this, they usually say, “O.K., 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 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 has to have occurred (domestic violence, physical abuse, assault, etc.) or some type of civil lawsuit has to be in progress (like a landline dispute or a divorce).

Many times, certain criminal actions automatically carry a restraining order with them.  If you have committed a violent crime against another person, for example, a condition of your release will probably require you to stay away from the victim. Additionally, if you are a victim of domestic violence, you can apply for what is called “protection from abuse.”  A protection from abuse action is filed in the District Court and requests that the District Court judge enter a restraining order or protective order against someone who is abusing you.

In civil cases, restraining orders are harder to obtain because the requesting party has to first meet several mandatory requirements. If you are in a civil case and want to seek a restraining order, it is best to consult your attorney about these various requirements.

As far as the mother’s question is concerned, neither the mother nor the daughter can obtain a restraining order against the ex-boyfriend 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 with the District Court judge; and c) as a condition of bond, or by other court order, the ex-boyfriend 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.