Restraining and protective orders are critical tools for individuals seeking to safeguard themselves from harm, harassment, or abuse. While these terms are often used interchangeably, they entail different purposes, procedures, and implications.
Restraining orders prohibit specific actions that could cause harm to another person. A protective order, on the other hand, offers protection from harassment and violence. Depending on your case and the need for protection, you must follow the proper procedures to obtain the correct order.
Understanding the differences between these orders helps you ensure you receive the necessary protection. Additionally, you will know what to expect when an order is issued against you. If you or your loved one needs protection from harassment, threats, or abuse, you will need the guidance of a reliable attorney. Your lawyer will help you file for a restraining or protective order.
The following are common differences between restraining orders and protective orders:
Difference in the Purpose of the Order
The purpose for which restraining and protective orders are issued may differ.
Restraining Order
The primary purpose of a restraining order is to prevent actions that could cause harm, harassment, or distress to another person. Restraining orders are commonly used in civil cases, such as:
- Property disputes
- Business disagreements
- Neighbor conflicts
The order acts as a legal barrier, which orders a person to stop doing something that might negatively impact another party’s well-being.
Protective Order
A protective order, on the other hand, is designed to protect individuals from serious threats like:
- Abuse
- Physical harm
- Stalking
- Harassment
- Other violent behaviors
The primary goal of this order is safety. Protective orders are often used in domestic violence incidents or repeated threats from someone close to the victim. They are more urgent and aim to prevent imminent danger.
Difference in Scope and Applicability
The scope of a court order entails what the order can or cannot do.
Restraining Order
Restraining orders have a broad scope. They can cover a wide range of civil disputes that do not necessarily involve violence or abuse. These disputes involve business conflicts, real estate issues, or neighbor disagreements. For example, a restraining order can stop someone from trespassing on property or contacting a business partner.
Protective Order
Protective orders have a smaller scope. They apply in cases involving personal safety and protection from physical or emotional harm. Common examples include instances of domestic abuse, stalking, sexual assault, or harassment. The order focuses on protecting people from harmful individuals, not resolving civil disagreements.
Difference in Issuance of the Order
Another way in which restraining and protective orders differ is how they are issued. Issuance of a protective or restraining order notifies the respondent of the existence of the order. Additionally, it stipulates the conditions that the person must follow.
Restraining Order
Restraining orders are usually issued through a civil court. They do not require the restrained person to be facing any criminal charges. For example, a business owner might request a restraining order against a former employee attempting to contact clients. The court reviews the situation and may issue the order even if no crime has occurred.
Protective Order
On the other hand, protective orders are issued in criminal or family court settings. They are often part of a broader case involving criminal activity or family disputes. The person seeking protection must show that they are in danger of harm. The process can begin quickly if the situation is urgent. In many cases, police involvement is necessary to start the protective order process.
Difference in the Legal Framework and Procedures
Restraining and protective orders ensure protection for a victim. However, the legal processes for obtaining each type of order involve different procedures.
Restraining Orders
The process of obtaining a restraining order includes these key steps:
- Petitioning. The individual requesting protection must file a petition in the court to begin the process. It details the specific need for the request. Also included are accounts of the incidents themselves that resulted in perceived threats or harassment.
- Court date. After reviewing the petition, the judge can issue a temporary restraining order (TRO). An ex parte TRO is appropriate when the preliminary showing demonstrates an urgent need for protection. The court will then set a hearing. The petitioner and respondent may argue their case at this hearing.
- Issuance of order. If the judge finds sufficient evidence of a credible threat, they will issue a permanent restraining order. The order will state the prohibitions for the restrained person.
Protective Orders
The process of obtaining a protective order involves the following steps:
- Petition filing. A victim initiates the legal process of a protective order by filing a petition. Victims of domestic violence file a protective order with the support of law enforcement officers, victim advocates, or legal counsel.
- Ex parte hearing. A judge can issue an emergency protective order in situations requiring urgent protection. The presence of abuse is not necessary for the judge to issue an emergency protective order.
- Full hearing. The court will schedule a formal hearing before your temporary protective order expires. The petitioner and the alleged abuser must attend the hearing to present evidence and testimony. The judge evaluates the circumstances to decide whether a long-term protective order is justified.
- Issuance and enforcement. A protective order is legally binding and enforced by police. Violations can lead to serious legal and collateral consequences.
Difference in Enforcement and Consequences of a Breach
Protective and restraining orders establish safety and boundaries. However, their success is reliant on proper enforcement. Violating these orders typically has dire legal consequences. The enforcement of protective orders varies slightly from that of restraining orders.
Restraining Orders
The enforcement of restraining orders varies by jurisdiction. However, it generally entails:
- Law enforcement intervenes when a violation occurs. Law enforcement can step in immediately when a person violates a restraining order. Police officers are authorized to respond to reports of a breach. If an officer finds someone in violation, they may detain or remove them. Quick intervention by police helps ensure the safety of the protected person.
- Civil contempt proceedings. Breach of a restraining order can result in civil contempt proceedings. The court can then set a hearing to decide if the person willfully disobeyed the order. If the court finds the person in contempt, it can issue penalties to enforce future compliance. These proceedings are part of the civil legal system.
- Potential fines or incarceration for non-compliance. The violator may face fines or jail time if the court confirms a violation. Punishment for violating a restraining order varies based on the severity of the breach. Fines serve as a financial deterrent for a restrained person. On the other hand, jail time can protect the victim and uphold the authority of the court order.
Protective Orders
Protective orders are part of the criminal justice system. Therefore, they carry more severe legal consequences for violations, including:
- Immediate arrest upon breach. Protective orders are often stricter than restraining orders. If someone violates a protective order, law enforcement may arrest them on the spot. Officers do not need a warrant to make the arrest. The officers only need a probable cause to believe that a violation occurred. The immediate response helps protect victims in potentially dangerous situations.
- Criminal charges. Violating a protective order is a criminal offense. The prosecution can file felony or misdemeanor charges depending on the case. You could face a felony charge if you cause harm to the protected person or commit multiple violations. A criminal record can long-term affect employment, housing, and personal freedom.
- Potential jail time. You risk facing incarceration after a conviction for violating a protective order. The length of the jail sentence and the amount of fines you must pay will vary depending on the specifics of the violation. These penalties emphasize the seriousness of the offense. Additionally, they discourage future violations.
Difference in the Duration of the Order
The validity of a restraining or protective order determines the duration of protection for the alleged victim. Protective and restraining orders differ in the length of validity.
Restraining Order
The duration of a restraining order varies depending on the circumstances of the case. Some may last a few weeks, while others can remain in place for several months or years. The court may immediately issue a temporary restraining order for short-term protection while scheduling a court hearing. After the hearing, the court may extend the order or make it permanent based on the evidence presented.
Protective Order
Protective orders can also be temporary or long-term. Emergency protective orders are often issued quickly in urgent situations and may last only a few days. After a hearing, the court can extend the protective order for months or even years. Victims can seek a renewal or extension of a protective order if the threat persists.
The severity of the danger and the likelihood of continued harm affect the duration of the restraining order. While you can extend both orders, protective orders have a statutory timeline reflecting the seriousness of the criminal conduct they address. Restraining orders are more open-ended and are renewed in civil court.
Relationship Between the Parties
The relationship between the parties involved in a protective order differs from that in a restraining order.
Restraining Order
A restraining order can be filed against anyone, regardless of the relationship. The parties involved do not need to know each other personally. Therefore, you can file a restraining order against:
- A neighbor
- A co-worker
- A business partner
The order is not limited to family or close relationships. The only requirement for a restraining order is a cause for concern, which you must prove at the hearing.
Protective Order
Protective orders are often limited to specific types of relationships. In many jurisdictions, the person seeking protection must have a particular relationship with the other party. These orders apply in domestic violence situations where there is an intimate or familial connection between the people involved. You can file a protective order against the following individuals:
- Current or former spouse
- Current or former dating partner
- Family member, including a parent, child, or sibling
- Household member or roommate
- Co-parent, regardless of your relationship status with them.
- Cohabitant or domestic partner
- Someone with whom you have a sexual relationship
Difference in Firearm Restrictions
Firearm restrictions are among the most critical differences between restraining and protective orders.
Restraining Order
Firearm restrictions do not automatically apply to restraining order cases. Whether or not someone is prohibited from possessing a firearm depends on the case's specific details. If the court believes there is a credible threat of violence, the judge may include firearm restrictions.
Protective Order
Protective orders, especially in domestic violence situations, often come with mandatory firearm prohibitions. The court enforces these restrictions strictly because of the high risk involved. Under federal law, individuals subject to protective orders cannot own or possess firearms. The firearm ban reduces the risk of further harm.
Public Record and Social Stigma
Restraining and protective orders differ in their effect on a person's life when they enter the criminal record.
Restraining Order
Restraining orders are civil. Therefore, they may not carry the same social or criminal implications as protective orders. However, they are still public records and can appear on background checks.
Protective Order
Protective orders are tied to criminal allegations and can affect someone’s reputation. Even temporary protective orders can create lasting personal and legal consequences.
Find a Skilled Restraining Order Attorney Near Me
Understanding the difference between restraining and protective orders is crucial when your safety or rights are at stake. Protective and restraining orders offer legal protection for the petitioner. However, they serve distinct purposes and apply in different legal situations. Restraining orders are civil tools to prevent unwanted contact or behavior.
On the other hand, protective orders are linked to criminal cases involving domestic violence, threats, or abuse. The type of order, who can request it, its enforcement, and the legal consequences of a violation also differ significantly.
If you believe you need protection or if someone has filed an order against you, you must seek expert legal insight. At Goldsman Flores Restraining Order Law Firm, we understand the urgency and sensitivity of these cases. Our skilled attorneys are dedicated to helping clients file for or defend against restraining and protective orders in California. Contact us today at 213-341-4087 to discuss your case.
