A restraining order is a limited-time court order that directs one person to stop harming another. For domestic violence victims and survivors looking to help shield and defend themselves against their abusers, restraining orders can provide legal protection and serve as an effective deterrent to some abusers. It may seem like a straightforward security measure, but most people don’t know the sometimes-complicated minutiae involved in the process of obtaining a restraining order or the ways they actually function. In fact, while “restraining order” is the phrase most are familiar with, it’s not the legal term used by many states. Instead, those seeking a “restraining order” may need to request a protection order, order of protection, civil protective order (CPO), personal protective order (PPO), protection from abuse order, abuse prevention order, domestic violence order, or harassment prevention order, to name a few of the most common. Beyond whatever the order is called, requirements, processes, effectiveness timelines, and enforcement protocols can vary from state to state. This post will delve into the details of restraining orders, what they can include, how to get one, the potential benefits and issues involved, and how to handle violations, with a particular emphasis on Massachusetts, where DVSN is based.
Who Can Obtain a Restraining Order?
Generally, anyone who has had an act of abuse committed against them by a spouse, family member, household member, or dating partner, is eligible for a restraining order against their abuser. The specific definitions of what constitutes abuse and what constitutes a household member or dating partner vary from state to state. In all but two states (North and South Carolina), laws about restraining orders are written to be gender neutral or inclusive of same-sex partners (WomensLaw). Learn more about specific difficulties queer victims and survivors face in DVSN’s June 2022 blog post, “LGBTQIA+ Domestic Abuse: Distinct Challenges & Barriers to Support”. The person obtaining the restraining order is typically known as the “plaintiff” and the person they are obtaining the order against is known as the “defendant”.
While minors can obtain restraining orders, most states (including Massachusetts) require an adult over the age of 18 (typically a parent or guardian) to file on the minor’s behalf. California is an example of an exception to this, where minors over age 12 can secure a restraining order on their own, though a copy will be sent to their parent/guardian unless a judge deems it unsafe to do so (DomesticShelters).
One does not need to be a US citizen to obtain a restraining order in the US. Protections in the Violence Against Women Act (VAWA) (learn more about VAWA in DVSN’s August 2023 blog post, “The Long History of Domestic Violence and the Development of DVSN”) were included so that immigrants without documentation can avoid deportation or prosecution if they seek a restraining order. While it is not a guaranteed nor quick process, the U visa program allows victims of certain crimes that happened in the United States, including domestic violence, who meet certain conditions, to obtain a nonimmigrant visa for temporary residency with the ability to work and the potential for permanent residency later on.
Requirements to Obtain a Restraining Order
The types of restraining orders available and their requirements are particular to each state. Massachusetts has two main kind of restraining orders: the 209A Abuse Prevention Order and the 258E Harassment Prevention Order. As the names suggest, the biggest difference is that one is intended to prevent abuse and the other harassment. There are notable differences in the requirements, however. In order to qualify for the 209A Abuse Prevention Order, the defendant must be a current or former spouse, substantial dating partner, co-parent, housemate, or family member by blood or marriage. The abuser must have harmed or attempted to harm the applicant physically, caused them to fear they are likely to cause physical harm at any moment, or forced the applicant to have sex physically or by threat.
The 258E Harassment Prevention Order, by contrast, does not require (nor preclude) the kind of close relationships that the 209A does. It may be granted if the defendant has committed three or more acts that were willful and malicious; aimed at the plaintiff; intended to cause fear, intimidation, abuse, or damage to property; or did, in fact, cause fear, intimidation, abuse, or damage to property. Alternatively, it may be granted if the defendant has at least once forced the plaintiff to have sex physically or by threat, committed rape, statutory rape, assault with intent to rape, indecent assault and battery, drugging for sexual intercourse, enticement of a child, criminal stalking, or criminal harassment.
Unfortunately, these requirements, and those of many other states, fail to account for all forms of domestic violence. The 209A focuses on physical and sexual abuse, and, while stalking, harassment, sexual assault, and some other forms of abuse may be covered by the 258E, they must be severe or have occurred multiple times in order for the victim to qualify for that order. They may not guard against other forms of coercive control, such as some types of psychological or financial abuse. The limited scope of the legal definition of domestic violence leaves loopholes in restraining order preventions. There has been movement toward addressing this issue in some places, but most of the relevant laws are on state level and so are not nationally applicable.
What a Restraining Order Can Include
Whichever type of restraining order is appropriate for a victim’s situation in their home state, they are often customizable and can apply to the plaintiff and to any other persons named by the court, such as family members. The plaintiff can specify that the defendant is ordered not to abuse them, not to contact them, to stay away from their home, workplace, school, or any other location, and/or to stay a certain distance away from them. They can ask for their abuser to vacate a shared household (sometimes called a “kick-out” order) and grant the plaintiff emergency temporary custody of shared children. While Massachusetts protection orders address custody only, in some states, restraining orders may stipulate whether or not the defendant has visitation rights to the children and, if so, whether there are any conditions, such as supervision, only at an agreed location, or overnights prohibited. They may also include an order for the defendant to pay the plaintiff a certain amount for child support, living expenses, abuse restitution, medical costs, and/or repair/replacement of damaged property. Pets may even be protected in some instances.
Often, restraining orders require the defendant to surrender all firearms, FID cards, and licenses to carry guns and ammunition. It is illegal for a current or former spouse, cohabitant partner, co-parent, or parent with a restraining order against them to have firearms. Unfortunately, these qualifications do not cover non-cohabitating dating partners (known as the “dating loophole” or “boyfriend loophole”) or those who need to possess a gun as part of their job duties, such as active military or law enforcement (DomesticShelters). Laws reducing or closing this loophole have been adopted in some states, including Massachusetts.
Plaintiffs can also specify that they do not wish their addresses (home, work, and/or school – theirs or their children’s) to be known to the defendant (known as “address impoundment”) and that the restraining order should be applicable across all US jurisdictions, including all states and territories (known as the Full Faith and Credit Clause). Some jurisdictions do still require restraining orders from another jurisdiction to be registered in order for this clause to be valid. Plaintiffs may also request any additional conditions they would like included in the restraining order that they feel are necessary to their safety or that of their child(ren).
Process of Obtaining a Restraining Order
One is NOT required to pay a fee to obtain a restraining order, and while having the assistance of a lawyer can be helpful in this process, it is NOT a requirement.
The first step is to fill out the appropriate form(s). Applicable Massachusetts forms can be found online or obtained from a courthouse clerk or sometimes a police station. Both 209A and 258E order applications are available online as fillable PDFs. A list of the necessary forms for a 209A order can be found here, and tips for writing the affidavit section (details of specific incidents of abuse) are here. If the plaintiff is involved in a divorce or child custody case with the defendant in Probate & Family Court, it will save time and energy to mention this to the clerk and/or Victim Witness Advocate at the courthouse. Many judges will not hear a 209A case with the victim currently involved in a Probate & Family case with the abuser and so they will need to file a 208 restraining order in Family & Probate Court instead. Those who are concerned about their abuser knowing where they are live can leave their address blank on all forms except the Request for Address Impoundment form.
Having personal identification information for the defendant and an organized timeline of abusive incidents with specific details can be very helpful. Depending on which type of court you choose to apply in (District, Probate & Family, Juvenile, etc.), forms may be filed at the courthouse serving either the applicant’s residence or, if they left the household to avoid abuse, their current residence. If using forms obtained online, applicants may call to inquire about their courthouse’s preferred method of form submission. Victim Witness Advocates at the courthouse, police officers, and domestic violence advocates, such as DVSN’s knowledgeable volunteers, can help explain form details and make suggestions based on an individual’s personal situation.
For those seeking restraining orders outside of court hours, an emergency restraining order can be obtained by police on behalf of the victim. In Massachusetts, emergency orders are effective until 4pm on the next day the court is open. The police will contact a judge to grant the emergency order, which can serve as an initial hearing. If filing a standard order during court hours, an initial hearing will be held as soon as possible. At this hearing, also known as the “ex-parte” hearing (where the other party is not present), a judge will consider the application, ask the plaintiff questions about the information they provided, and deny or grant a temporary order for up to 10 days. Police will then attempt to “serve” the order to the abuser, giving them a copy so they are aware of its existence and particulars. Most orders are not technically enforceable until they have been served.
Another hearing will be scheduled within 10 days, where both parties have the opportunity to be heard and present witnesses. If police are unable to serve the defendant with the order before the 10-Day hearing, the victim may continue to come to court for 10-day extensions until the defendant is served. If the plaintiff does not attend the 10-day hearing(s), the temporary order will expire after 10 days, and they will need to reapply with new evidence and begin the process again. Once the defendant is served, if they do not attend the next hearing, they have waived their right to be heard. If they do attend, they may defend themselves and question the plaintiff on the information in their affidavit. The judge may then deny the order, transfer it to Family & Probate Court, grant part of the requested relief, or issue the first permanent restraining order as requested for up to one year. At the 1-year hearing, the order may be extended for an additional year or issued indefinitely. Plaintiffs may request modifications or termination of a granted order at any time. If a restraining order is not granted, plaintiffs may not reapply with the same evidence. If another abusive incident occurs, however, victims may re-file for a restraining order (DomesticShelters).
After a Restraining Order is Granted
It is free to get as many copies of a restraining order as the plaintiff needs. Providing a copy to people/institutions such as workplaces, schools, extended family members, and trustworthy neighbors, can help eliminate confusion on aspects of the order that may impact them. It can also be a good idea for victims/survivors to keep a copy of the order on them, in case of violations.
Benefits of a Restraining Order
Restraining orders send a clear message to abusers that the victim/survivor is serious about ending the abuse. They provide a framework for victims, abusers, and law enforcement to know precisely what is and is not allowed, and what the consequences are for failing to comply. While they will not stop all abusers, they do help mitigate issues for many. In a 2010 study, 77-95% of those who obtained a restraining order against an abuser said that it was fairly or extremely effective for them. They reported less fear, fewer days of stress and anxiety, and more days of sleep. On a societal level, restraining orders are a lower cost option to help increase citizen safety that actually save millions of dollars compared with costs if not issued (Logan).
Issues of a Restraining Order
Of course, there are some drawbacks and problems that may come with obtaining a restraining order. While orders themselves are free to obtain, there may be other financial costs for the plaintiff, such as taking time off work to attend hearings, traveling to and from court, and paying for childcare. They may feel pressure to retain a lawyer in order to successfully make their case, or to proceed with other legal steps they may not be ready for, such as divorce or custody. Some victims feel embarrassed or fearful of taking this official step. It makes the abuse much more public and may change how others view them. Victims may worry they will not be believed or even blamed. Or they may dread seeing their abuser in court and be concerned about retaliation by their abuser for taking action against them. It is a very dangerous time.
There may also be issues with officials that victims encounter along the way. Some court clerks, law enforcement personnel, or judges could be discouraging about the victim’s experiences or their chances of an order being granted. A study in Kentucky found that 40% of respondents mentioned “judicial bias” as a barrier to getting a restraining order. Respondents living in rural areas were more likely to feel this bias and more likely to state that “who you know” in the judicial system was important in obtaining an order. Respondents in rural areas were also more likely to report higher levels of fear and future violence, which researchers suggested may be due to greater geographic and social isolation, less access to services, and a higher likelihood of being married to their abuser with shared children. Police may have trouble serving an order if the defendant is hard to find or deliberately avoiding them. The plaintiff providing as much information about the defendant, and where and when they might be found, can improve the odds of a timely serving. In some places, enforcing restraining order violations may not be a priority for police.
What if the Abuser Violates a Restraining Order?
While statistics vary, overall, 30-77% of restraining orders are not violated. Many of those who experienced a violation reported that the incidence and frequency of violence, abuse, and control was significantly reduced (Logan). Though this seems like encouraging data, there are still numerous restraining orders that are violated. In Massachusetts, both 209A Abuse Prevention Orders and 258E Harassment Prevention Orders are civil orders. However, violating certain parts of them (including no abuse, no contact, stay away, and surrender firearms requirements) is a criminal offense punishable by up to 2.5 years in a house of correction. If any part of a restraining order is violated, whether it is large or small, malicious or benign, the victim may either file a police report or go to court and file a petition for contempt. The abuser may then be charged with a new domestic violence charge or contempt of court. If they are a repeat offender or the violation is serious, they may be charged with a felony. If the victim/survivor feels they are in danger from the abuser, calling 911 may be a better option. It is a good idea to document all violations in detail with notes, screenshots of electronic communications, and/or photos, as this can help with court cases and restraining order amendments.
The details and process of obtaining, maintaining, amending, and/or dismissing a restraining order of any kind can be confusing and overwhelming. DVSN advocates are well-trained to assist survivors, explain the particulars of what is required, what will happen, where to go, and answer questions. DVSN Court Support Advocates may be available to accompany plaintiffs to court. Friends, family members, Victim Witness Advocates, other domestic violence advocates, and police officers can be excellent sources of support and knowledge for those seeking restraining orders. Having as much information as possible can help make it a smooth experience that brings a sense of relief and security.
- Look up laws by state in “plain language” from Women’s Law
- Learn about laws relating to restraining orders from the American Bar Association
- Find a lawyer near you from Law Help, or search by state from Justia, or find potential pro bono legal assistance from the Women’s Bar Foundation or the US Department of Justice
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