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What is the Difference Between a Protective Order and A Restraining Order?

A protective order and a restraining order are both similar in that they are orders that must be signed and approved by the Court. They offer protection to people but are often used interchangeably. However, there are some significant differences between the two and understanding those differences will help bring clarity about what order you are seeking.

PROTECTIVE ORDER

How do I Get a Protective Order?

Typically, a protective order is filed as a separate lawsuit on its own but can also be filed with a family law petition. The application must be filed in the county where the victim lives or where the offender lives. However, it is good to know that the applicant does not need to meet any minimum time limits to establish residency in that county when applying for a protective order. All confidential information pertaining to the applicant will be withheld for the applicant’s protection.  

The people who may file for a protective order can be a family member, house member, even a boyfriend or girlfriend. On behalf of the parties, the Texas Department of Family and Protective Services can step in and file too, as well as a representing attorney. The filing party will be termed the “applicant” or “petitioner” and the party whom the order is requested against is the “respondent.”

It is also good to know that the application fee for a protective order is free. Most people are under the impression that their protective order will cost them much, but this is a common myth. In fact, there is also no costs for certifying copies, for court reporter fees, or any other services in relation to it.

If the offender is found guilty, those costs will then shift on the offender to pay those costs. If the applicant has applied through a private attorney, they will unfortunately still have to pay for their attorney fees, but they may find some relief in knowing those fees can be ordered to be payed by the respondent.

Purpose

A protective order is required when abuse of a child or another family is happening and is intended to protect those people. A protective order is a signed order that orders an abused to refrain from harassment, stalking, threatening, or physically assaulting their victims.

In the end, a protective order will work to prevent future violence, differentiate between acceptable behaviors, and helps reinforce public policy values that family violence should be put to an end.

How Long Does It Last?

The duration of a protective order can vary. A temporary protective order lasts for 20 days with the general protective order, once signed by a judge, can last for a period of two years. They can also be granted a lifetime protective order for the duration of the victim’s life. There are different kinds of protective orders that one can file for which will be discussed in a subsequent blog.

Consequences if Violated

If a protective order is violated, understanding the legal action you can take against a violator is important because it differs greatly from a restraining order. If violated, a protective order can end with both criminal and civil liability.

With criminal liability law enforcement does have the right to enforce a protective order, and a violation may result in serious criminal charges. Local law enforcement knows of all protective orders in their area, and they will immediately seek the offender’s arrest. A violation is also a Class A misdemeanor, punishable by jail or fine. If you have more than 2 past convictions, a violation turns into a 3rd degree felony. If the offense is done the presence of law enforcement, they can be arrested on the spot, but may need to obtain a warrant for other violations before an arrest.

Lastly, in civil terms, the judge who ordered the protective order may also punish the offender by fining them, jailing them, or both.

RESTRAINING ORDER

How do I Get a Restraining Order?

If you are afraid your spouse will commit acts of harm against you or your property, you can file for a temporary restraining order. A temporary restraining order is typically filed with the initial petition that is filed in a civil case. This TRO is an emergency order that must be signed by a judge.

You can also file various motions like a Motion for Temporary Restraining Order, Temporary Injunction, or Temporary Orders. Along with that you will need an affidavit explaining what conduct has led to the need for a TRO and why it must be granted now.The people who are eligible for a temporary restraining order must be a party to any family proceeding. They can also be filed by a representing attorney, or any pro se party.

Aside from a protective order, filing fees are not free and will need to be paid by the requesting party. If you are represented by an attorney, those fees will be paid directly to your counsel.

Purpose

Different from a protective order, a temporary restraining order protects both people and property. This order instructs a person to either do or do not do certain things for the time stated in the order. For example, it can pertain to property like telling a spouse they are not allowed to drive a certain car, withdraw funds from a specific bank account, etc. For people, it can protect people from harassing behaviors like threatening messages, stalking, etc.

What a TRO can not to is include provisions pertaining to child custody, support, and cannot exclude a spouse from their home.

 How Long Does It Last?

The max duration of temporary restraining order is 14 days, which after it will expire. However, the time can always be extended for a good cause shown. The party against whom the order is requested can also stipulate, or agree, to an extension as well. There can also be additional extensions, but the opposing party must agree to the extensions.

Consequences if Violated

Violations of a temporary restraining order do not have criminal penalties, but civil. A violation is brought to the attention of the court which can hold the party in contempt. It may also order them to pay fines or even send them to jail, but this rarely occurs unless the violation is so severe.

If you believe that someone you know is experiencing familial abuse, it is important to know that you can also do something to help. Often, the victims will be scared to speak out against the ones they love. It is important to speak out for these victims to prevent further violence. There are numerous hotlines, and reporting can be done directly on the Texas Department of Family and Protective Services at  https://www.dfps.state.tx.us/Contact_Us/report_abuse.asp.

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