What happens when someone takes out a restraining order against you?
May 1, 2006 4:51 AM Subscribe
What happens when someone takes out a restraining order against you?
Do the police bring it to you or does it come through the mail? Will it be on your permanent record (i.e. if a future employer does a background check, will it show up?) What recourse is available when the person who asked for the restraining order is lying? (I realize it all varies a bit state to state.)
Do the police bring it to you or does it come through the mail? Will it be on your permanent record (i.e. if a future employer does a background check, will it show up?) What recourse is available when the person who asked for the restraining order is lying? (I realize it all varies a bit state to state.)
Fairly generic answer here, based on general common law principles.
A restraining order can be taken out ex parte, which means that the person who wants/needs the order goes to court, applies to the judge without the other person being there and the judge, if satisfied, will grant a temporary order. The person against whom the order is made isn't usually deemed to be bound by it until it's brought to their attention, usually by way of personal service (i.e. the document containing the order is handed to them by a process server, police officer or some such). If someone knows that a restraining order has been granted against them and deliberately evades service, the court can order substituted service, e.g. by delivery of the document to the person's address.
There is usually a right of reply, and sometimes the judge will fix a date a few days away when the matter will come back before the court so the person against whom the order is made has the opportunity to give their side of the story.
Now I don't know what the position is in the US, but in England most 'return dates' are dealt with by the respondent giving what's called an undertaking to the court. Basically what this means is that the person says, look, I'm not admitting to anything that's alleged against me, but I promise to the court that I won't go within 100 yards of that person, or phone them or visit their house (or whatever) in future. The promise is binding, and if the person breaks the promise, they can be brought back before the court.
If someone really objects to the restraining order, the court can hear evidence from both sides as to the situation that has given rise to it, and decide whether or not it should continue.
Most restraining orders arise out of domestic situations, and it's often a 'he said/she said' situation where the parties' perceptions of the truth are very different anyway.
Hope this helps. Without knowing the jurisdiction in which the order is taken out, I can't be more specific, but I think these principles will apply in most areas.
posted by essexjan at 7:09 AM on May 1, 2006
A restraining order can be taken out ex parte, which means that the person who wants/needs the order goes to court, applies to the judge without the other person being there and the judge, if satisfied, will grant a temporary order. The person against whom the order is made isn't usually deemed to be bound by it until it's brought to their attention, usually by way of personal service (i.e. the document containing the order is handed to them by a process server, police officer or some such). If someone knows that a restraining order has been granted against them and deliberately evades service, the court can order substituted service, e.g. by delivery of the document to the person's address.
There is usually a right of reply, and sometimes the judge will fix a date a few days away when the matter will come back before the court so the person against whom the order is made has the opportunity to give their side of the story.
Now I don't know what the position is in the US, but in England most 'return dates' are dealt with by the respondent giving what's called an undertaking to the court. Basically what this means is that the person says, look, I'm not admitting to anything that's alleged against me, but I promise to the court that I won't go within 100 yards of that person, or phone them or visit their house (or whatever) in future. The promise is binding, and if the person breaks the promise, they can be brought back before the court.
If someone really objects to the restraining order, the court can hear evidence from both sides as to the situation that has given rise to it, and decide whether or not it should continue.
Most restraining orders arise out of domestic situations, and it's often a 'he said/she said' situation where the parties' perceptions of the truth are very different anyway.
Hope this helps. Without knowing the jurisdiction in which the order is taken out, I can't be more specific, but I think these principles will apply in most areas.
posted by essexjan at 7:09 AM on May 1, 2006
Do the police bring it to you or does it come through the mail?
In Massachusetts, you will be served in-person by a law enforcement agent (which includes police officers, county sheriffs, and constables). If you have any firearms or a firearms license, the agent will confiscate these.
Will it be on your permanent record (i.e. if a future employer does a background check, will it show up?)
No.
What recourse is available when the person who asked for the restraining order is lying?
In practical terms, almost none. You are entitled to a hearing, where the evidence will probably be your word against his/hers. In the vast majority of cases, the judge will err on the side of caution and approve the order, unless you can show some specific reason why this would cause you unreasonable harm.
posted by cribcage at 8:21 AM on May 1, 2006
In Massachusetts, you will be served in-person by a law enforcement agent (which includes police officers, county sheriffs, and constables). If you have any firearms or a firearms license, the agent will confiscate these.
Will it be on your permanent record (i.e. if a future employer does a background check, will it show up?)
No.
What recourse is available when the person who asked for the restraining order is lying?
In practical terms, almost none. You are entitled to a hearing, where the evidence will probably be your word against his/hers. In the vast majority of cases, the judge will err on the side of caution and approve the order, unless you can show some specific reason why this would cause you unreasonable harm.
posted by cribcage at 8:21 AM on May 1, 2006
In Illinois, a restrainig order does become part of your criminal background, and is searchable by employers. It also means that I am flagged when I go through customs--in my only international trip, I was subject to a complete search of my bags and person specifically because of the restraining order.
I have found that the restraining order on my record made it more difficult to get positions--in fact I probably did not get job offers from one or two employers due to it's existence.
Though a snafu in the court system, my temporary restraining order never had an expiration date entered, hence it appears, when I am pulled over, to be current. This can be especially troubling, since it involves my son, of whom I currently have custody. As a result of this, I keep a certified copy of the court document permitting custody in my car.
My order was supposed to expire in Janurary of 2000. My ex wife and her sister perjered themselves to get it, for it has no basis. Here, six years later, it still haunts me, and shows up at odd times in my life.
Get busy. Get into court, and get it recinded. Then file the necessary paperwork to get it purged from the system. The worst part about a restraining order is that it's usually simply preventing you from things you don't want to do anyway, so it seems not to be a big deal. To the courts, cops and potential employers, it is.
posted by lester at 8:52 AM on May 1, 2006
I have found that the restraining order on my record made it more difficult to get positions--in fact I probably did not get job offers from one or two employers due to it's existence.
Though a snafu in the court system, my temporary restraining order never had an expiration date entered, hence it appears, when I am pulled over, to be current. This can be especially troubling, since it involves my son, of whom I currently have custody. As a result of this, I keep a certified copy of the court document permitting custody in my car.
My order was supposed to expire in Janurary of 2000. My ex wife and her sister perjered themselves to get it, for it has no basis. Here, six years later, it still haunts me, and shows up at odd times in my life.
Get busy. Get into court, and get it recinded. Then file the necessary paperwork to get it purged from the system. The worst part about a restraining order is that it's usually simply preventing you from things you don't want to do anyway, so it seems not to be a big deal. To the courts, cops and potential employers, it is.
posted by lester at 8:52 AM on May 1, 2006
cribcase is right about the process in court. Despite it being a defacto conviction, the judges tend to err on the side of the requestor.
posted by lester at 8:53 AM on May 1, 2006
posted by lester at 8:53 AM on May 1, 2006
"If you have any firearms or a firearms license, the agent will confiscate these." < -- the scary part about it. you can wind up fairly defenseless because a psycho ex-girlfriend makes up a story about you.br>
(Seen it happen. It's BS.)
posted by drstein at 10:43 AM on May 1, 2006
(Seen it happen. It's BS.)
posted by drstein at 10:43 AM on May 1, 2006
Just wanted to chime in and say I'm not the anonymous poster this time. But I was that time.
I'm not sure if you're asking for yourself, but since you're anonymous you might be. My advice would be to call down to the family or juvenile court in your jurisdiction (not the jurisdiction of the person who sought the restraining order, if that happens to be different from yours) and find out what you can. The clerks of court I talked to while I was seeking confirmation of what a police officer in a town I've never visited mentioned to me were extremely helpful.
posted by emelenjr at 11:07 AM on May 1, 2006
I'm not sure if you're asking for yourself, but since you're anonymous you might be. My advice would be to call down to the family or juvenile court in your jurisdiction (not the jurisdiction of the person who sought the restraining order, if that happens to be different from yours) and find out what you can. The clerks of court I talked to while I was seeking confirmation of what a police officer in a town I've never visited mentioned to me were extremely helpful.
posted by emelenjr at 11:07 AM on May 1, 2006
"If you have any firearms or a firearms license, the agent will confiscate these."
Does the Second Amendment not apply here? Despite no indictment, no trial, no conviction, and very little due process? IANAL but this would seem to be begging for a test case.
posted by SuperNova at 1:09 PM on May 1, 2006
Does the Second Amendment not apply here? Despite no indictment, no trial, no conviction, and very little due process? IANAL but this would seem to be begging for a test case.
posted by SuperNova at 1:09 PM on May 1, 2006
A TRO was granted against me by ironically, a man that brutally assaulted me (this was an attempt to discredit me in reporting him). .A permanent RO was NOT granted, and though it was lifted, I am worried that the TRO will show in a background check. . Does anyone know about this? I am a consultant and all clients do background checks, usually criminal and credit . . .because it was not granted, there is no CLETS order so it is not in the criminal system, rather, filed as a DV civil matter . . Uggg . . .
If anyone has experience with this or knows how employers treat TRO's that were never issued permanently, I would be obliged. Also, would a simple civil search bring it up?
The abuse of TRO filings and judges that grant them is appalling. In my case, there was not a single threat to him, no incident of me calling and threatening him or driving by his home and office. You can basically say whatever you want and then the burden is on you to fight it. (I have spent over 10k) . .I would urge anyone that is served a TRO to take it very seriously, get an attorney and be prepared to fight it.
posted by noel1204 at 9:40 PM on January 4, 2007
If anyone has experience with this or knows how employers treat TRO's that were never issued permanently, I would be obliged. Also, would a simple civil search bring it up?
The abuse of TRO filings and judges that grant them is appalling. In my case, there was not a single threat to him, no incident of me calling and threatening him or driving by his home and office. You can basically say whatever you want and then the burden is on you to fight it. (I have spent over 10k) . .I would urge anyone that is served a TRO to take it very seriously, get an attorney and be prepared to fight it.
posted by noel1204 at 9:40 PM on January 4, 2007
This thread is closed to new comments.
I remember the police didn't seem to care who was present and/or who may have heard the discussion, so it was pretty humiliating for my roommate and pretty embarassing for everyone present.
As for your other questions, I'm not sure. The order against my roommate was dropped within 48 hours, as it was the product of a misunderstanding to begin with. State of New Mexico, btw.
posted by whatnot at 7:05 AM on May 1, 2006