There are three (3) types of restraining orders:
Each of these provides generally the same protections, where they differ is in there applicability to a specific situation. Let us break them down on an individual basis.
The Order for Protection is intended to be used to protect a person from abuse by a family or household member. Generally, this includes and may be a spouse, parent, child, former roommate, or even a prior significant other from a romantic relationship. A family member or legal guardian may obtain an OFP for a minor child. A person may obtain an OFP by proving that the respondent (party you are seeking the OFP against) committed domestic abuse. Typically this is done by a showing of: threats, the creation of fear of imminent harm, or actual physical harm. An OFP is sought through the family court system.
A Harassment Restraining Order is quite similar to an OFP. The key difference is that there is no “family or household member” requirement, thus the parties can be completely un-related. Once again, a legal guardian may obtain an HRO for a minor child. Second, an HRO must be obtained through a civil proceeding. This process is quite simple; the person seeking an order must submit a petition an affidavit to the signing judge. The petition and affidavit must provide reasonable grounds to believe the respondent actually harassed the person and that there is an immediate threat of harassment. The judge will either, grant, deny, or request a hearing. Either party has 45 days to request a hearing regarding the HRO.
A Domestic Abuse No Contact Order is the most unique of the three types of restraining orders. A DANCO is issued in criminal court. It may only be requested by a prosecutor and the statute does not contain an explicit standard for issuance. The person to be protected by the DANCO is not a party to the motion and needs not have notice of the issuance of an order. The person’s wishes may, however, be taken into consideration by the prosecutor.
A restraining order is a very flexible tool at the judge’s disposal. They are given wide discretion in setting the terms of a restraining order. This is particularly useful when there is joint custody of a minor child between the parties or other such issues. A restraining order provides specific guidelines that a party may not do. Typically, this includes maintaining a specified distance, not making contact with the other party, as well as, many other stipulations depending on the specific circumstances of the parties involved. Further, a restraining order provides recourse for the violation of the order.
The penalties for violating a restraining order will vary by the type of restraining order and by the severity of the violation. Criminal sanctions will be brought against a violator. They may be as light as a misdemeanor. However, they may be as severe as five (5) years in jail and a $10,000 fine. An OFP generally contains the most severe penalties.
An OFP can be modified or dismissed with a motion by the petitioner or the respondent. The respondent is required to show there has been a material change. The judge is not required to grant a motion brought by either party.
An HRO can only be modified or dismissed after five (5) years, unless it expires sooner. The requirements for a motion to modify or change are the same as an OFP.
A DANCO has almost no way to be modified or dismissed. An order may only be addressed at hearings for other issues. The best way to attempt to change a DANCO is by talking with the prosecutor.