What is a Protective Order? Do I need one?
Anyone who experiences abuse from a partner, ex-partner or close relative can file a restraining order, also known as a protective order, with the court. Physical abuse doesn’t need to happen. Restraining orders also can be filed for harassment, stalking, and verbal threats.
What Is a Restraining Order?
A restraining order, also known as a protective or protection order, is court-issued to protect victims against domestic violence, harassment, stalking or assault.
The court issues the order to keep the alleged abuser away from the victim. A restraining order prohibits the abuser from any contact with the victim, including by phone, text or email. The abuser can be ordered to vacate premises shared with the victim, even if it’s legally the abuser’s. The court can also order police to escort the abuser to collect any belongings to ensure there is no contact.
When children are involved, the victim is granted sole custody. Any visitation rights are determined by negotiation in court.
In most cases, restraining orders require the abuser to turn over any firearms or weapons. They also prevent them from buying new ones. The court may also require mandatory drug tests and counseling.
Who Can Get a Restraining Order?
For a domestic violence restraining order, the victim must be closely linked to the abuser.
They can be married or common-law partners, divorced, separated, ex-partners, cohabitants or ex-cohabitants, parents of a child together or a close relative – parent, child, sibling, grandparent or in-law.
No physical abuse needs to take place for a victim to file a restraining order. It’s enough the victim feels threatened or scared for their safety or that of their children.
Domestic violence restraining orders can be filed against an abuser who commits one or more of the following acts:
- Harassment
- Stalking
- Verbal threats
- Terrorist threats
- Assault
- Sexual assault
- Burglary
- Criminal restraint
- Criminal trespassing
- Lewdness
- Kidnaping
- Homicide
Studies show 50% of female homicide victims are murdered by an intimate partner or ex-partner.
If you feel unsafe in your relationship, the first step is to leave. Support is available to help you safely leave an abusive relationship.
How to Defend against a Restraining Order:
If you are the subject of a restraining order, understand that it is a very serious matter that deserves your prompt attention. You do, however, have important rights. If a person (known in the case as “the petitioner”) asks a court to issue a restraining order against you because of alleged domestic violence or other domestic conflict, you are entitled to be notified of the request, to have a court hearing, and to defend yourself. (Temporary orders are an exception; see the explanation below.) You also have the right to be represented by an attorney, although in restraining order proceedings, you are not entitled to free counsel or a court-appointed attorney.
You should never ignore a restraining order request. Instead, you should get information about your rights and options, consult with a lawyer, and participate in the court process. Once a restraining order is entered, you can be charged with a crime if the protected party accuses you of violating the order. If a permanent order is issued, you will be prohibited from possessing a firearm while the order is in effect, and the order will show up on background checks.
What is a Preliminary Injunction in Family Law?
Emotions can run high during a divorce. One or both parties may be inclined to do something rash to take out their anger or frustration, such as destroy property that belongs to the other person. In an effort to make sure nothing substantial happens that could change the financial situation of one or both parties, the courts automatically make an order during a divorce case called a preliminary injunction.
A preliminary injunction aims to protect the status quo of each spouse before a divorce. It is a temporary order that will only last as long as your divorce case unless another order of the court says otherwise. It automatically goes into effect in every Colorado divorce case once the summons has been served. The language of a preliminary injunction can be found in Colorado Revised Statutes Section 14-10-107(b)(l). A summary and translation of the language of the preliminary injunction is below:
A. “Restraining both parties from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party or an order of the court, any marital property, except in the usual course of business or for the necessities of life and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the injunction is in effect.”
Translation: The court expects you to maintain the “status quo” with respect to your financial situation and assets. This means that you cannot liquidate your retirement account, sell your rental property, or transfer funds into a secret account in someone else’s name. While you are not prohibited from spending money, how you spend your money should mirror how it was spent during the marriage. This also means that you should not be buying new cars, new homes, or taking expensive vacations during your divorce. If you need to move an asset or spend an unusually large sum of money, you will either need agreement from the other party or an order from the Court.
B. “Enjoining both parties from molesting or disturbing the peace of the other party”
Translation: Do not irritate or interfere with your soon-to-be former spouse’s life. This can be difficult at times, especially if your former spouse is interfering with you. Examples of this can be destroying financial documents, showing up announced at your former spouse’s work or apartment, or calling your former spouse excessively.
C. “Restraining both parties from removing the minor child or children of the parties, if any, from the state without consent of the other party or an order of the court;”
Translation: After the injunction is in place, in order to leave the State with your children, you either need permission from the other spouse or an order from the Court after making a formal request that is granted.
D. “Restraining both parties, without at least fourteen days’ advance notification and the written consent of the other party or an order of the court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, or automobile insurance that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary.”
Translation: You cannot cancel your former spouse from health insurance, life insurance, or auto insurance until the entire divorce process is completed (and they cannot cancel you). Whoever was paying for the insurance must keep paying for the insurance.
What is an Emergency Restriction of Parenting Time? Do I Need One?
If you are concerned that your children are in imminent physical or emotional danger, you can file a Motion to Restrict Parenting Time. Courts are required by law to rule on a Motion to Restrict within 14 days of filing. During the 14-day period, any Parenting Time will be supervised by an unrelated third party the court finds suitable or a licensed mental health professional.
A court may only restrict a party’s parenting time if the parenting time would “endanger the child’s physical health or significantly impair the child’s emotional development.” The court must specify on the record the factual findings supporting the restriction.
Both parents are initially entitled to parenting time with their children unless parenting time would “endanger the child’s physical health or significantly impair the child’s emotional development,” the same standard used to determine parenting time restrictions. The court initially allocates parenting time based on the “best interests of the child.”
While the Court may take initial preventive action, restricting in the belief of the facts alleged in the Motion filed by one parent, they do not enter these restrictions lightly. There must be a factual basis for the allegations. Motions to restrict that are baseless are dealt with harshly and could unfavorably affect a case long-term.
How Do I Defend Against a Motion to Restrict Parenting Time?
If you have a Restriction of Parenting Time entered against you, first, you must follow it. Even if you believe it to be groundless, there is no “one last call to your child(ren)”. Failure to adhere to the restriction will only hurt your case. If unrepresented at the time the restriction is put into place, seeking the advice of counsel as soon as possible is highly recommended. The 14 days until the Motion to Restrict hearing will go by quickly and you and your attorney will need time to prepare your defense.
Also, you will need to set up parenting time at a supervised parenting time facility to have as much parenting time with your child(ren) as the Court allows under the restriction. You will need to work efficiently with your legal team in the preparation of your defense. If there is not enough time between the date you retain your attorney and the hearing, a continuance may be obtained. While the continuance may assist in your defense, the continuance also extends the restriction.
Have questions about emergency orders in a family law case of your own? Call (303) 622-5502 or contact us online to speak with an attorney.