How to Obtain a Restraining Order

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Law Offices of Gonzalo C. Macchi, PLLC

MiamI, FL

Practice Areas

Family, Child Custody, Child Support, Divorce

Getting a restraining can be an emotional decision that will affect at least two lives. However, it may be a decision that has to be made for the safety of the Petitioner. Moreover, obtaining a restraining order does require going through a legal process, including knowing what type of restraining order to file. A restraining order can be filed by the victim, or the parent or legal guardian of a minor who is a victim.

The first part of the process is to find out what kind of restraining order to file as there are several types of restraining orders. The types of restraining order include acts based on: 1) domestic violence; 2) stalking; 3) repeat violence; 4) sexual violence; and 5) dating violence. Each type of restraining order has its own requirements and standards to meet in order to obtain it, and have it granted by the Judge.

Here are the standards to meet for each type of restraining order:

1) Domestic Violence-There has to be at least one incident of domestic violence, or be in reasonable fear that the Petitioner, or the person filing the Petition for the restraining order, is in imminent danger of being a victim of domestic violence. “Domestic violence” can include an actual act of physical violence, stalking, cyberstalking, and assault. The parties must be “spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.”

2) Stalking-In order to obtain a restraining order based on stalking, which does include cyberstalking, the Petitioner must show that the Respondent, or the person whom the restraining order is being filed against, is constantly harassing the Petitioner, with no legitimate purpose. The Respondent must willfully, maliciously, and repeatedly follow, harass, or cyberstalk the Petitioner and make a credible threat to the Petitioner.

3) Repeat Violence-The Petitioner must show at least two incidents of violence on separate occasions directed at the Petitioner, or the Petitioner’s immediate family. The last act must have occurred within the past six months of the filing of the Petitioner.

4) Sexual Violence-Obtaining a restraining order based on sexual violence has different requirements than obtaining a restraining order for repeat violence. In order to get a restraining order based on sexual violence, the Petitioner must have reported the act to a law enforcement agency, and is cooperating with the State in prosecuting the Respondent; or the Respondent has committed an act of sexual violence, and was sentenced in prison for sexual violence, and the sentence has expired, or is due to expire, within 90 days following the date that the Petition for the restraining order is filed.

5) Dating Violence-Getting a restraining order based on dating violence applies to parties who has been involved in a “continuing and significant relationship of a romantic or intimate nature” within the past six months of the filing of the Petition. The relationship between the parties must be of a sexual nature or an “expectation of affection.” This does not apply to parties who have a platonic, or friendly, relationship, casual acquaintances, or those who have a casual or business relationship.

Upon the filing of the Petition, the Judge will review it to see if a temporary restraining order is warranted based on the allegations. The Court will set a hearing within fifteen days. The police will serve the Respondent with a copy of the Petition, temporary restraining order, and Notice of Hearing. It is important to be as specific as possible in the Petition, including locations, dates, injuries, and specific acts of violence, as the Judge may not address any allegations not mentioned in the Petition. At the hearing, the Petitioner will be allowed to present his or her evidence and bring witnesses to prove the allegations in the Petition. The Respondent will also have the opportunity to present any defenses and witnesses at the hearing as well to refute the allegations.

An experienced

family law attorney will be able to advice the Petitioner which type of

restraining order to file based on the facts of the case, represent the

Petitioner in court, and properly introduce evidence on the Petitioner’s

behalf. An attorney will also be able to direct questions to the Respondent and

any witnesses the Respondent brought to the hearing, object to his or her

defenses, and object to the evidence that the Respondent is attempting to

introduce into evidence.

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