One of the most important functions of the law is to protect the physical safety of the individual. Temporary Restraining Orders are easy to obtain, and the burden of proof is light. (On the other hand, to go before a Superior Court judge and testify falsely is the crime of perjury, and it can result in a prison sentence.) The main burden of proof is for the applicant for the TRO to prove that as a result of the conduct of the defendant, whether as a pattern of events, or as the result of direct threats, the applicant feels fear for his or her safety. This can be subjective, because no two people will experience fear as a result of the same things; but there are certain circumstances that would cause fear in ALL people, for example, if a person came into one's home shouting, or shooting off a firearm, etc.

A TRO is obtained as an EX PARTE ORDER, which means that the order can be issued without the presence of the defendant at the hearing. Ex parte hearings are generally held on an emergency basis, making the notice requirements light, but they also only have effect on a temporary basis, pending legal notification of the defendant, and an actual trial hearing, after which the terms of the restraining order may be made binding for a period of about two years. Generally, there is no defense against restraining orders, because it comes off sounding like the person who wants the restraining orders rescinded is seeking legal permission to cause harm to the person seeking the orders. It can have the same effect as the infamous inquiry, "How long has it been since you stopped beating your wife?" There is, accordingly, no correct answer. Usually people whose relationships have broken down to the extent that one party has applied for restraining orders, have a perceivable level of hostility towards each other, and the court will ask why they want the orders rescinded, if they claim that they know longer want to know each other, or go in the vicinity of the other person.

The only time that TROs are properly defeated is when they are improperly applied for, such as by a spouse involved in a divorce, who is trying to get the upper hand by creating false evidence of violence, and who therefore must perjure him or herself to obtain the restraining orders. When this happens the case reveals itself, such as when a wife seeks to bar her ex-husband from spending time with their children through the use of restraining orders, but up until the time that the orders are applied for, the husband never acted in a violent manner, and spent every waking hour at the ex-wife's residence, caretaking the children.

Restraining orders are issued by the Superior Court, and the paperwork can be obtained from the court clerk and may be submitted handwritten in pen. The documents are called an ORDER TO SHOW CAUSE, EX PARTE, and a SUPPORTING DECLARATION. (The OSC is the same as the SUMMONS in a standard proceeding, and the SUPPORTING DECLARATION is the same as the COMPLAINT in a regular lawsuit.) The logic behind the idea of an Order to Show Cause is that the Defendant is ordered to show up at the hearing to show a cause as to why the court should not issue the order requested by the plaintiff. The supporting declaration lays out the CAUSES OF ACTION, such as the chain of events that created the circumstances of fear that now threaten the plaintiff. The OSC will contain the Department number where the hearing will be held, and the first hearing is held the SAME DAY. The plaintiff is required to notify the defendant BY TELEPHONE a minimum of FOUR (4) HOURS before the hearing, so that the defendant has the opportunity to show up and testify in his or her defense.

At that hearing the plaintiff must give testimony under penalty of perjury, about the actions of the defendant, that have caused the plaintiff to fear the defendant. In the mind of the judge it is better to give an order restraining two parties from interacting, than to allow the slightest possibility that bodily physical harm might result, or even a murder. After the hearing (especially if the defendant does not show up), the judge will issue an ORDER, which the plaintiff must then SERVE on the defendant (along with the OSC and Supporting Declaration). The plaintiff must also serve the same papers on the police departments for the communities where the plaintiff and the defendant reside. The Temporary Restraining Orders are usually only good for 21 days, at which time another hearing is held, and if no good cause can be shown, the orders are made "permanent," which is to say that they are made good for two years.

Generally, restraining orders forbid either party to go within 100 feet of each other, and the failure to abide by this can result in arrest. The orders can also include provisions that they NEVER go to each other's place of employment, or each other's homes. It can include specific provisions forbidding either party to phone the other, or to make contact of any kind. Again, failure to abide by the order of the court can result in arrest. Here is the tricky part, because the order of the court is also an order TO THE POLICE to enforce it. Nothing angers a judge more than issuing an order that a policeman failed to enforce, the result of which is that someone the judge was trying to protect, gets hurt or murdered. THIS IS IMPORTANT!

The police do NOT like to get involved in domestic disputes, and in the past they went out of their way to avoid domestic problems; but in the past decade new laws have required the police to take a more pro-active position relative to domestic abuse. Now in many states any sign of domestic abuse REQUIRES the police to arrest someone. This does not stop police from ignoring TROs, however, because police in general are more accustomed to being in control of people, instead of being told by civilians what their duty is. This is a fine line, but police have a wide latitude for interpreting the law, and they often will tell us they can't practice law when they don't WANT to do something, and then all of a sudden, they become the absolute arbiters of what the law is, when they WANT to do something.

People who have gone to the trouble to obtain orders from the court are holding orders that COMMAND the police to enforce them; it is not up to the individual cop to decide not to enforce them. If a person protected by a TRO feels that a policeman is not doing his duty by enforcing a restraining order, such as against someone who has clearly violated them, the person protected by the orders should tell the policeman that HE WILL SUE THE POLICEMAN and the police department, if he fails to enforce the orders. This will cause doubts in the policeman, as to the intelligence behind ignoring the ORDERS OF THE COURT. By telling the policeman that the Superior Court judge will not be happy to hear about this policeman's failure to obey the law, to enforce the judge's order, the individual is actually PULLING RANK on the policeman. The police are very conscious of the authority of Superior Court judges, and their power to make the lives of uncooperative police miserable. (Don't forget, the judges take their power PERSONALLY, and to fail to enforce a judge's order is a personal affront to his authority).

DISCLAIMER: The Justice Center does not give legal advice. This pamphlet is provided free of charge, as a public service for general informational purposes only. No warranty is made or implied. Persons with questions of law are encouraged to seek the advice of an attorney.