Restraining Orders

How to Get a Restraining Order

By Janet Portman, Attorney
A temporary restraining order can be issued very quickly following your application, without a court hearing and in the absence of the defendant. It will be followed some days later by a hearing, of which the defendant has notice, when the judge decides whether to make the order permanent.

You may need a restraining order (also called a protection order) for any of a number of reasons. Your spouse or partner may be abusing you or your child, or someone you once dated is stalking you. In cases like these and hundreds of others, a restraining order may be the key to your safety and peace of mind.

You can read about restraining orders in our article, What is a Restraining Order or Protection Order?

Once you've made the tough decision that you need one, it's time to act. Knowing how to get a restraining order and how it will be enforced is the fastest way to get the protection you need.

Getting a Restraining Order

The process for obtaining a restraining order varies from state to state, but the same general steps apply everywhere.

Finding Help

Many people are able to enlist the help of agencies or nonprofits that are set up to assist victims of stalking and domestic violence. Start by conducting an Internet search, with search terms like "obtaining a restraining order in [your city or state]." The results of your search will likely list one such organization. (When looking for help, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can and should do to prevent someone else from learning that you’re doing research or seeking help. Some victims, for instance, might use the same computer as the abuser or might have a phone plan that allows the abuser to see the calls they make and receive.)‚Äč

You may also find that your local court has published information for people to obtain these orders on their own (courts are increasingly realizing that victims are often without lawyers, and some have responded by making the process more transparent). For example, the California courts website has extensive, step-by-step instructions for the forms needed to obtain an order.

Paperwork—A Lot of It

If you're doing this on your own, you'll start with the form needed for a temporary restraining order—one that can be granted on the spot, sometimes without needing to give the aggressor (the defendant) notice. You can get the forms at your local courthouse, and they're often found online. Many shelters and domestic abuse prevention organizations also have the forms. Once you have the forms, the process goes like this:

  • Complete the forms, describing the abusive or harassing behavior in as much detail as possible.
  • Take your forms, your ID and identifying information about the person you seek protection from to your local courthouse (or the courthouse in your city that has been designated as the place where such matters are heard).
  • The court clerk takes your forms and information to a judge, who decides if a temporary restraining order is needed until a hearing on your application.
  • The court will set a date for the hearing for the permanent restraining order.
  • You'll need to give the defendant notice of the hearing, by arranging for service of process on the defendant, including the location, date, and time of the hearing.
  • At the hearing, you'll provide evidence of the abuse or harassment, and substantiate your need for protection.
  • The judge will decide whether to issue the permanent restraining order, usually that same day.

Enforcing a Restraining Order

Once a restraining order is granted, you should make several copies and keep one with you at all times. Also leave a copy of the order with a responsible person anywhere that the defendant is directed to avoid, such as your workplace and your children's school or daycare. Defendants who are the subject of a restraining order break the law when they don't follow the order's terms. The consequences are jail time and fines.

Call the police immediately if the defendant violates the order. The police should make a report of the incident, and if necessary, enforce the order by ordering the person to leave you alone or by arresting that person. In fact, many states have laws that say the police "shall arrest" a defendant who is violating the order. Unfortunately, however, not all police departments follow these directives.

If you do not get cooperation from the local police, you can take these steps, which may require the assistance of an attorney:

  • File a civil lawsuit against the defendant, alleging invasions of your privacy and other civil wrongs, and
  • Talk to your local prosecutor about pressing criminal charges.

Questions for Your Attorney

  • What are my options if a judge refuses to issue a restraining order?
  • Can I ask for a restraining order to stop elder abuse?
  • Can I use physical force to stop someone from violating a restraining order?
  • Are police officers legally liable if they refuse to enforce a restraining order and I'm later injured by the person named in the restraining order?
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