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No. If you are seeking a domestic abuse restraining order, the court is prohibited from ordering any custody, physical placement or child support orders. A separate action may need to be filed in Family Court. You may need an attorney to assist with issues about custody/physical placement.
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As a member of society you and/or your family have the right to feel safe at home, work, and in the community. If someone is violating these rights, you need to take appropriate actions to protect yourself and/or your family.
Depending upon your personal situation there are three types of restraining orders that can help protect you:
If a Temporary Restraining Order is ordered by the court, a court date will be set for an injunction hearing. The petitioner should then contact law enforcement to have them serve the papers on the respondent. Never give the respondent the legal papers yourself. At the Injunction hearing, as the petitioner, you must appear in court and may bring others/advocates for moral support. Both the petitioner and the respondent have the opportunity to be heard at the injunction hearing. If the facts show domestic abuse, harassment, or child abuse has occurred, the court may issue an injunction for a period of not more than two years. The respondent may or may not be present at the hearing but must be served notification of the hearing.
No. But, you may wish to hire an attorney or speak to an attorney prior to the hearing.
No, however, the respondent may hire an attorney to represent him/her. If so, you may wish to reconsider obtaining legal counsel. A free attorney will not be appointed for the respondent. This is not a criminal proceeding.
Yes. If the respondent violates the order, once it is in effect, report it to law enforcement immediately and every time. Then the respondent may be arrested for breaking the order and may face criminal charges.
The penalties for the violation of domestic abuse and child abuse are imprisonment not to exceed nine months, a fine not to exceed $1,000, or both. The penalties for the violation of harassment orders are imprisonment not to exceed 90 days, a fine not to exceed $1,000, or both.
Yes. Before a hearing can be held, at which time the temporary restraining order can be replaced with an injunction which can be in effect for up to two years, the abuser must be served with a copy of the temporary restraining order/injunction petition. The respondent has the right to attend the hearing.
The temporary restraining order/injunction only restricts the respondent for making contact with you and does not include the children, unless a separate child abuse temporary restraining order/injunction order has been filed on behalf of the child(ren). At the injunction heating, custody or physical placement issues may come up. By law, when issuing a domestic abuse temporary restraining order or injunction, the court may not address these issues. It is possible for a court to address issues regarding the children at a harassment injunction hearing because the law does not say the court is prohibited from doing so.
It is preferable to arrange any exchange of the child(ren) through the party so that there is no direct contact between the two of you. Many abusers use child exchange contacts as an opportunity to abuse the victim. Third party exchanges in public places help to eliminate this.
If the emotional abuse includes threats, you may be able to get a domestic abuse restraining order. In addition, the domestic abuse restraining order law says if the person may engage in domestic abuse, you can obtain a restraining order. The laws are extremely specific about the types of abuse a person must have been subjected to in order to obtain an injunction. For a person living with someone who is psychologically or emotionally abusive, the mental abuse can be equally, if not more painful, then physical abuse. The domestic abuse restraining order law says the respondent must have engaged in certain physical abuse or the threat of any behavior.
If your abuser engages in a course of action, which harasses and intimidates and serves no legitimate purpose, you may be able to get a harassment restraining order.
Sometimes. You will want to make sure the respondent has been served and you would not be in any danger in going home. You can ask for police assistance in doing this, but often the police cannot immediately get to the task of serving the respondent with the restraining order and placing you in possession of your home. You may need to stay someplace else until the police can help you.
You are the best enforcer of this order. Every time the abuser makes contact with you, 911 should be called immediately. Not calling the police or only occasionally, gives the abuser confusing messages about the validity of the temporary restraining order/injunction. The abuser will begin to believe it is all right to have contact sometimes. Also, sometimes officers do not know about or ignore the provisions of the domestic abuse law, which says the order is not void if the petitioner allows contact.
At the injunction hearing when you are giving testimony, you will want to include any special requests, such as him/her staying away from you at your place of residence or work. If you happen to see each other at either of these places and your abuser does make contact with you, call the police immediately because it would be a violation of the temporary restraining order/injunction.
A petitioner can file a domestic abuse temporary restraining order or injunction in the county she or he is temporarily residing in or in the county where the respondent lives or in the county in the county where the incident occurred. A petitioner can file a harassment temporary restraining order or injunction in the county where the petitioner lives or in the county where the respondent lives or in the county in which the incident occurred.
The law says the respondent is prohibited from initiating direct contact with the petitioner. If the petitioner of a domestic abuse restraining order allows the respondent admittance into her or his home, the restraining order does not become null and void. The police are to enforce any violations of that order. However, if the petitioner continues to initiate contact, the police may believe that she or he is not serious about the injunction. The police can then arrest the petitioner and the prosecutor can charge the petitioner with aiding and abetting the violation of the restraining order.
If the injunction is for less than 4 years, the petitioner can get it extended for up to two years from the date it is first entered. The respondent must be notified once the extension is granted.