Orders

RESTRAINING ORDERS ARE CIVIL IN NATURE

A restraining order can be issued for many reasons. It is not limited to protections of persons and when it is directed to the protection of a person, it can be much more broad. For example, a restraining order can be used to stop an individual from making threats, taking possession of a car, taking money out of a bank account, or removing or changing a child´s school.

Restraining orders are much easier to get and maintain since the order is one of a civil nature. Furthermore, a restraining order is generally sought by an individual or her attorney and is always sought in a civil court (or court of general jurisdiction).

The civil nature of the restraining order means that if the order is violated, the offender will not be arrested. The victim may (and should) call the police and report the offense but the officer investigating will only write a domestic report, he or she will not arrest the offender on the spot. That said, the report can be obtained by your divorce or child custody lawyer who will then present the report to the judge in open court as evidence. While the Judge has great discretion in sanctioning conduct that violates the Court&acut;s orders, jail time is reserved for the most egregious offenders.

PROTECTIVE ORDERS ARE CRIMINAL IN NATURE

A protective order is designed by nature for the protection of persons, not property. The main reason for this is because a protective order is designed to prevent the most egregious kind of harm, physical injury.

A court issues a protective order for the benefit and protection of victims of domestic violence. Protective orders demand that an abuser stop threatening, stalking or physically assaulting the victim. In most cases, the protective order also prohibits the abuser from contacting the victim in any form, including in person, by phone or by mail. In Texas, it is common to have the protective order command the aggressor to remain a specified distance from the protected person, the protected person´s home, and the protected persons´s place of employment.

A protective order may be sought by an individual as part of a divorce but it can also be requested through local law enforcement or the district attorney. Most important – violation of a protective order carries with it a criminal sanction. This means the victim can call the police if the order is violated and the police have authority to investigate and arrest the offender if the facts warrant.

SUMMARY OF PROTECTIVE ORDERS – VS – RESTRAINING ORDERS

jb0323_salinas_arrest.jpgProtective orders and Restraining Orders are both civil court orders issued to prevent continuing acts of family violence.Family violence is basically defined as any act by one member of a family or household intended to physically harm another member, a serious threat of physical harm, or the abuse of a child.Family includes blood relatives or relatives by marriage, former spouses, parents (married or not) of the same child, foster parents and foster children, or any member or former member of a household (people living in the same house, related or not).A Protective Order and a Restraining Order perform similar if not identical functions. Both are orders from a Judge that prohibit certain conduct – generally causing bodily injury or in some cases even being within a certain distance of a person, that person´s home or place of employment. The most significant difference between a Protective Order and a Restraining Order is the punishment for violating the order. A Protective Order is enforced through criminal sanctions whereas the Restraining Order is subject to civil sanctions.The violator can go to jail for violating either of the Orders, the true significance is that the Protective Order is harder to get because the penalty for violating it is criminal. That is not to say a person that violates a restraining order cannot go to jail, the civil sanction for violation of a court order is up to 180 days in jail and a fine of up to $500 however the penalty for violating a protective order is much more severe: (1) violation of a protective order will result in arrest by a police officer called to the scene and it is automatic; (2) conviction of violating a protective order will result in a criminal record; and (3) violation of a protective order is a Class A Misdemeanor (punishable by fine not to exceed $4,000 and up to one year in jail) and under certain circumstances can be a 3rd degree felony (punishable by a fine not to exceed $10,000 and prison for not less than 2 years nor more than 10 years).

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