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SEPARATION
& HARRASMENT
~ Restraining Orders ~
"How
Can They Help?"
Disclaimer: The information provided herein is for informational purposes only and not to be taken or presented as 'legal advice'. Due to the individual nature and circumstances of each individual case persons are advised to seek actual court appointed Facilitator, Paralegal or Attorney's services before taking action in their own case. This information is presented as guidance and suggestions concerning the issues at hand and not as binding legal counsel or representation in any way, shape or form.
RESTRAINING ORDERS; How Can They Help?
Even under the best of circumstances any divorce or separation results in extreme emotions that some people are not prepared to handle. In an abusive situation it is typical that one partner is prone to exerting a force of anger while the other suffers from fear and intimidation. This intimidation often rises to the point of stalking, verbal harassment and/or threats of physical violence. It is at this time that a person should consider the options available in order to protect one's self.Before we get into the details of employing a restraining order it would be good to first dispel the inaccurate assumptions and preconceived notions regarding one.
"A Restraining Order won't stop a bullet.".
Neither will having a law that says, "Murder is a felony punishable by law.". The purpose of establishing a Restraining Order is not to create a magical force field around you that stops bullets in mid-air. Yet many defeatists will discourage friends or family from obtaining one with this argument. The purpose of the order is two-fold. First, it gives notice to the court and the offending party that a boundary is established. The offending party may not contact you in any way other than in court or under certain supervised child visitation parameters. The second purpose of the order is to give you legal recourse you would not have without it. In reality it is far too often that even when a drunken, angry spouse shows up at your door pounding on it with threats of death.. Once police find out that this person is an ex-spouse they will usually resolve the issue by simply escorting the offending party away. This gives the offending party room to escalate the issue the next time he returns. But in this instance police are slow to say that any real crime was committed other than maybe a warning for disturbance of the peace. With a Restraining Order in effect, however, a crime has been committed. The order was violated. This is when you can exercise your legal recourse to press charges and have the other party fined and eventually jailed for repeated offenses where otherwise not much would happen unless you were physically assaulted."A Restraining Order is too much paperwork.".
Getting a Restraining Order is actually less paperwork than enrolling your child in school and does not need the assistance of a lawyer. You can file the papers yourself (someone else must serve the other party, you cannot do that.) and if you have questions about the paperwork a Facilitator at the Clerk's Office can help you. The court date consists of you presenting your reasons for requesting the Stay-Away orders. Having a list of times, dates and description of harassment you have already suffered from the other party whether by phone, letter or in person is usually enough to convince the Judge an order would be in your best interest. It is more difficult for the other party to prove that no restraining order should be allowed so they can maintain their freedom to harass you further."Obtaining a Restraining Order will only make them more angry."
While this is true, another thing is also true. If someone has so little respect for you that they would harass you already, they will continue to do so in increasingly violent ways if you do not set up a legal barrier for yourself. It is the common "victim" mindset to think, "If I just cower and remain quiet they will leave me alone.". This is exactly what an abuser hopes for from a victim. The last thing an abuser wants is to have to explain his harassment to a judge in court. This is what you can do with the help of an order from the Judge, which tells the offender to "stay away from the defendant". To disobey this order is to disobey a direct order from the Judge, which the Judge will not look kindly upon.We won't go into the details of how to apply for one since the paperwork is a matter of perhaps four pages, making some copies, and having them served. Your local Clerk's office can provide free help with any questions you have on this. Once you have filled out the paperwork, made copies and filed one copy with the Court Clerk, you then have a court date and must serve the other party. This cannot be done by you but may be done by any other friend, family member, stranger, Sheriff's office or private service for a fee. The person may be served in person or under certain rules, by mail. All that needs to happen is that they receive their copy of the Notice of Motion along with it's court date.
From the time the person is served until the date of the court appearance your Restraining Order is already in effect. This is very important. If the person violates it before the court date be sure to bring this up at the hearing. It will be at the hearing that the Judge will decide if the order shall go into place and for how long. Typically Restraining Orders will be in effect for three years and can be renewed.
Once the Order is in effect.
Now that you have the order in effect is it up to you to make use of it. The first thing you will want to do is take the red-inked, stamped, court copy they give you and make several copies for yourself. Place the original in a safe place. Keep a copy with you in your car, home, your child's school office, your work office and at the home of any family you visit with often. What you will concern yourself with from here on out will be violations to that order.The order will state that the offending party is not allowed to contact you, at all, except for "peaceful conversation regarding to child visitation". If you do not have children with this person then they are not allowed to contact you at all. This includes anything by mail, note from third parties, telephone calls or approaching you in a public place. They may not follow you on any public roadway, visit your work or school. They must remain a minimum distance from you home (usually 100-300 yards) and cannot loiter in your neighborhood. What is important is that if they violate any one of these "stay-away" orders you must report it to the police in order to get a copy of the police report or.. make a note of the time, date and place for presentation to the court.
At first the violations will result in either a warning or fine. The offending party may or may not even pay those fines but what is important for you is that the court is now officially aware you are being harassed. As harassment continues the punishment increases with higher fines for the offender and then mandatory jail time or community service. (Which is no fun.) But all this is meant as a discouragement to the offender and in many cases it simply begins to cost them too much to take the time harassing you any more. Many disgruntled offenders will simply walk away from harassing you after seeing you have the court on your side.
However, some people are a bit more hardheaded and therefore more of a threat. That is why you must not only document and present to the court repeated harassment, but take a further action that would not otherwise be so readily available to you. This is when you must contact your local District Attorney's office and set up an appointment to file Felony Criminal Stalking charges with their Criminal Division. As the victim of a criminal act you will not need a personal lawyer. The D.A.'s office will represent your case if you show that the Restraining Order was served and repeatedly violated with threats or acts of violence and/or stalking. Felony Criminal Stalking is a Federal offense that can result in several years' incarceration for the offender as well as extended parole limitations when they are released. In the meanwhile you can finally know that your harrassor is behind bars. [See the following link for a detailed, legal description of Felony Criminal Stalking ]
"What is the alternative?"
The alternative is to have no order from the court telling the offender to stay away from you. Under these conditions you will have a very hard time pressing charges unless you are physically assaulted (which you may or may not survive with permanent injury). Without an order you really can't expect much help or legal recourse if/when someone keeps calling you all hours of the night, stalking your neighborhood repeatedly, confronting you as you leave your job or barging in on visits with family and friends. In such cases, as mentioned before, the police will most likely just try to diffuse the situation by telling the offender to go somewhere else. But even repeated harassment, without a Restraining Order, will not amount to anything you can take to court. Even damage to your vehicle or home will be difficult to prove without witnesses. But when you can show the court that motive was already present and that you'd taken the steps to protect yourself, children and home with a Restraining Order you are one step ahead in the process.While it may seem a fearful thing to take any action, in the long run it is the worse thing you could do for yourself or children to simply cower down and take the abuse. I have made no point of saying that it is only women who need protection from men, for there are times men need "stay away" orders to keep vindictive ex-spouses or ex-girlfriends at a distance. There are times when even ex-roommates or family members need to be kept away so as to avoid violent situations. If you get an order from the judge, you must make use of it. Do not give in to "just one more chance" for the offender. One more chance may be the one that costs you. The tools are in place, get them and use them.
~Henry Velez / Copyright 1999; all rights reserved.
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