A restraining order can provide necessary protection if you feel threatened by someone, but you may not know how to obtain one. The process can be daunting if you have no familiarity with the legal system, but there is help available. Here are some basic things you should know about restraining orders.
Types of Restraining Orders
Before you can file for a restraining order, you should know the differences between the different orders available in Rhode Island. Each order is used in a different situation, so knowing the difference can help you understand which you need to file for.
Emergency Order: An emergency order can be requested if you need immediate protection and the courts are closed. It is issued by the local police department, who will contact a judge on your behalf to approve it. These orders will only last until the next business day, and can be issued without the abuser being present for the issuing, which is known as ex parte. On the next business day, you will have to go to the court to petition for a temporary restraining order.
Temporary Order: A temporary order is appropriate if you are filing for a restraining order during normal operating hours for court. A judge will issue this type of order if they believe that you are in immediate danger of severe injury, loss, or damage. This type of order will typically last 3 weeks, and is meant to protect you until your formal court hearing. It can be extended if your court date is adjourned past the limit. This is also an ex parte order.
Final Order: A final order will be issued at the court hearing after a temporary order has been issued. This hearing allows the alleged abuser to present their defense and prove their side of the story. If your abuser doesn’t appear at the hearing, your order can still be granted, provided the other party was provided proper notice of the hearing. These orders can last up to three years, and may be extended later if you can prove that the extension is necessary.
Which Court Do I Go To?
Depending on your relationship to your abuser, the court you petition for a restraining order will differ. Family courts are used when the abuser is a spouse or ex-spouse, a family member, or a current or ex-partner with whom you have a child. Family court also handles restraining orders involving juveniles. The district court will issue restraining orders if the abuser is a roommate or a current or ex-boyfriend or girlfriend that you dated for a significant period of time within the last year, but do not have a child with. Superior court handles restraining orders involving former friends, landlords, neighbors, or anyone else, such as a stalker.
How Do I Get a Restraining Order?
In Rhode Island, there is a process to obtain a restraining order, or protection order. After you have determined which court your will need to file with, you can begin your petition. If you are filing during court hours, you will first be granted a temporary order. If court is closed, you will be granted an emergency order, and will have to petition for a temporary order as soon as court opens again.
Step 1. Get the Necessary Forms. In order to file your petition, you will have to obtain and complete the correct forms. Go to the family or district court for the county where you live, and request the necessary forms from the clerk. If you need immediate protection, ask for a temporary ex parte restraining order, which can be issued the same day. Your abuser doesn’t have to be present or forewarned to petition for a restraining order, but the order isn’t valid until they are served with the order, either by a police officer or legal server.
Step 2. Complete the Forms. You can find support to fill out these forms from a number of sources, but the clerks are not allowed to provide assistance or legal advice. All they can do is tell you which boxes to complete. Many women’s shelters offer help, or your attorney can guide you. In the space provided to explain your reason for seeking an order, outline the most recent events and clearly describe incidents of violence with specific language. Use words such as slapping, hitting, grabbing, yelling, and other similar terms to illustrate your story. If possible, include dates and locations of each event. You may have to provide a valid address and a physical description of the defendant for the order to be served. Wait until you have shown the forms to the court clerk to sign them. These forms will need to be notarized and signed in the presence of court personnel.
3. Wait for Review. A judge will review your application that day. Once you have completed your application, bring it to the clerk for signing, and they will forward it to the judge. You may be asked questions while the judge reviews your case, and then make the decision on whether to issue a temporary order or not, based on your complaint. If it is decided that you or your child is in immediate danger, a temporary order will be granted and a court date will be scheduled for a final hearing. Keep a copy of your temporary order with you at all times until your final hearing.
4. Serve the Order. Once granted, the order must be served to your abuser to be considered valid. They will also receive notice of the hearing and a copy of your initial complaint. A deputy sheriff must serve the order for free, or you may hire a certified constable to serve the order. Once it has been served, they will send a “return of service” form to you and the court to prove that the defendant was notified appropriately of the order. You may want to follow up with the individual who served your order before the court date, if you do not receive the return of service notice. Never serve your abuser the order yourself. If your abuser is a minor, their guardian or parents must also be served.
If the individual tasked with serving the restraining order has been unable to do so, despite diligent effort, the court may order an alternate method, such as:
- Sending the orders by certified and regular mail to the defendant’s work and last known address
- Leaving copies of the papers at the defendant’s home with a person of suitable age and discretion
- Publication in a newspaper for two consecutive weeks
The judge may set a new date and extend the temporary restraining order as required to ensure that all possible methods of service are exhausted before the final court date.
5. Attend Your Hearing. If you fail to appear at your hearing, your restraining order will expire and you will no longer be protected. If your abuser fails to appear, the judge may still grant you a final restraining order or reschedule the hearing. If the defendant was properly served and the return of service form was received by the court, it is likely that your order will be granted.
If your abuser does attend the hearing, you will be required to prove your relationship to them, by demonstrating the length of time you have been dating, the type of relationship you had, and how often you interacted with each other. You may need to provide evidence such as love letters, witness statements, or photographs. This is especially important if the defendant denies your relationship. An experienced family law attorney will know what to collect as evidence and how to present your story to the court through the entire process of obtaining a restraining order.
If you need help gaining protection, get in touch with our Rhode Island family law attorneys. Our caring team has the experience to support you during this difficult time, and we can help you present your story in a compelling way to win the court’s support. Contact TJC • ESQ today to schedule a consultation with our firm and begin your case.