Both a protective order and a restraining order are used to prevent one party not to contact or go near another party (i.e. home, family, work, or school). Although both terms are similar in nature, there are significant differences between the two especially in how courts and police departments apply them.
For example, protective orders are typically associated with family violence, and in Texas, they are issued when instances of violence, stalking, or sexual abuse have occurred. Restraining orders on the other hand, are almost always linked to civil case proceedings.
Protective orders and restraining orders are different, and if you’re finding yourself in the process of a divorce, it’s important to know those difference so you can better understand your rights and obligations in court.
What is a protective order?
When clear and present danger of violence is established by the Court, they will then grant a protective order. The term “violence” can include a range of things like: domestic abuse, sexual assault, or even threats of violence. The idea of a protective order is to protect victims from abuse or protect them from continued exposure that may lead to abuse.
In instances of family violence, an order of protection demands that an alleged abuser stop violent behaviors like:
- Physical abuse
- Threats of abuse
- Prohibits contact from the alleged abuser. The alleged abuser is prohibited from contacting yourself, your children, and other members of your household
- Requires the alleged abuser to keep a certain amount of physical distance away from you, your, children, your work, and your children’s school
- Forbids the alleged abuser from carrying a gun and order can suspend their license to carry
*Anyone that violates a protective order can be subject to arrest.
How do I get a protective order?
In Texas, a protective order can be granted if:
- Someone has hurt you, or threatened to hurt you
- You are afraid if that person will hurt you again
- You, your spouse, or partner you’re dating has a close relationship (i.e. marriage, close relatives, dating, living together, or sharing a child) with the person who hurt you
If an abusive situation like this sounds like something you’re in and you’re considering a divorce, it’s important to consider and discuss the possibility of a protective order with your divorce attorney.
In what ways does a protective order protect me and my children?
Protective orders are created to reduce the risk of future threat or harm by an abusive person. Because a protective order cannot completely prevent harm, some people may be reluctant to consider one. The benefit of obtaining a protective order is that severe penalties including jail time and heavy fines can occur if an abuser is found in violation.
A protective order can prohibit the following from occurring:
- Communicating with, or using another person to communicate with, protected individual or household member in a that is harassing or threatening
- Possession of a firearm
- Family violence or an act that perpetuates further family violence
- Removal or tampering with the global positioning monitoring system (GPS)
- If the custody or control of a pet companion animal is in threatened by harm, verbal or physical threats, or interference with the care of the animal
- Visiting or going near the protected party’s home, work, or school
How long does a protective order last?
Texas has three types of protective orders to grant based on family violence. Here are the different types of protective orders you can receive in Texas:
Temporary ex parte protective order
With the help of a domestic violence lawyer, a person can obtain a temporary ex-parte protective order if abuse has occurred, assault has happened in the past, or you have reason to believe abuse will occur again. For the order to be granted, the victim would need to prove that they were abused by their partner, and that there’s risk of abuse occurring again.
After reviewing the evidence, and if abuse is found, then a judge will sign a protective order for a short period of time (usually around 21 days). Ex-parte means the order may be granted without a hearing. The purpose of an ex-parte protective order is to provide protection to the individual while the other party is served, and during that period where the parties wait for a hearing.
Final or permanent protective order
A court can issue a protective order for a period of up to two years in most cases. In cases where there’s an extreme history of abuse, the court can grant a lifetime of protective orders called, Magistrate’s order of emergency protection (aka: emergency protective order).
The first two orders mentioned in the article don’t require the abuser to be arrested in order to obtain the orders, but this third type of order is normally issued by a criminal court after the abuser is arrested. An emergency protective order can last anywhere from 20-91 days depending on the circumstances.
An emergency protective order can be granted if your partner has committed one or more of these offenses:
- Assault
- Stalking
- Sexual abuse
- Sexual assault
- Trafficking
An emergency protective order can be issued if either you, your guardian, the police officer that made the arrest, or the prosecutor makes a request for one. However, an emergency protective order is typically files by the arresting officer at the time the abuser is arrested.
What can a restraining order do for me?
A restraining order is issued when the court orders a person to stop engaging in a certain behavior. A restraining order outlines what someone can or cannot do, are linked to civil case proceedings (not criminal), and are written and filed with other court documents as a way to maintain certain conduct throughout court proceedings.
What does a restraining order in Texas look like?
Since restraining orders cannot be enforced criminally (i.e. police are unable to act), the affected party must go to court to seek a civil resolution. When a court hearing happens, the judge will make a decision based on the facts presented. A judge can issue monetary damages and other restrictions that can limit access and contact to the petitioner or preserve property if a violation of the order occurs.
What happens if a violation occurs?
A violation of a protective order in Texas is generally classified as a Class A misdemeanor, which can result to a fine up to $4,000 and up to a year in county jail. In cases where a protective order is issued in regards to sexual abuse, sexual assault, indecent assault, indecency with a child, stalking, or violating an order, it can be classified as a State Jail Felony.
A defendant can be charged with third-degree felony if the defendant has been convicted of violating the order two or more times, or has violated the terms of the order by committing assault or stalking.
Violation of a restraining order does not result in criminal charges, but it can result in financial sanctions issued by the court.
In Trouble? Seek Help
Divorce is a tumultuous time for anyone, but when an abusive situation is thrown into the mix, protecting yourself is more important than ever. Seek the help of a qualified family attorney that can help you determine the best way to protect both you and your family from an abusive situation. Contact us today for a free consultation.