no-entrance-1463629

Protection Order vs. Restraining Order: What is the Difference and Do I Need One?

 

There are two types of Orders that can be issued by a Court that contain provisions to protect you and/or your dependents in a time of abuse or stalking that makes you fear for your safety.  Chances are, you’ve heard of a restraining order in which a Court can issue as part of a pending case to order a person to restrain from doing some action.  While a restraining order can be used domestically to order a person to stay away from a particular place or from you, it can also be used to prevent someone from selling property, or engaging in some other activity that is contrary to the interests of one or more of the parties in the case in which it is ordered.  For instance, a judge may issue a restraining order in a divorce to keep the parties from selling assets or hiding money.  While violating a restraining order does have a consequence, it is usually not enforceable by law enforcement.  It requires that parties appear before a judge who will make a determination of contempt of court.  That judge then will decide the penalty, if any, for the violation or prescribe a method by which a party can “cure” or make right the violation or both.

If you are in a domestic relationship, meaning parents or parent to be, spouse or former spouse, siblings or significant other and you fear for your immediate safety, what you are probably looking for is a protection order.  A protection order is a petition made to the Circuit Court by the person seeking protection, or by a parent or guardian of a minor child.  The form is printable at http://ujs.sd.gov/uploads/forms/protection/UJS-091A-Domestic%20Petition.pdf.  After submitting the form detailing your experiences and concerns, a duty judge will make a determination regarding your statements.  At that time, he will either grant a Temporary Protection Order, or TPO, against the Defendant and set a hearing for within 30 days or just set a hearing without granting the TPO.  Either way, the Defendant will have the opportunity to come to Court after being served the Order, by the sheriff, to tell his or her side of the story.  At that hearing, the judge will either make permanent the Protection Order for up to five years, or dismiss it if you have not made your case.  Both a Temporary and Permanent Protection Order, once served, give you immediate protection.  You may notify law enforcement who have the power to enforce the specifics of your order, which may include barring the Defendant from a shared residence, temporary custody of minor children, no contact in any form with you, prohibiting the Defendant from a particular place, such as a work place or any other place you frequently inhabit.

If you are in need of a Protection Order, an attorney can advise you on how to properly fill out the form and of the information that will lead to the best result until a hearing can be had.  An attorney can also represent you at the hearing and provide the knowledge and support when you must face the Defendant.  If you have minor children that are affected by the order, whether as a result of a visitation or support order, an attorney can assist with those matters as well

If you have been served with a Protection Order, an attorney can represent you in court to protect your rights, especially if you have been falsely accused.  If an order is entered, it is a restriction on your rights to contact or be in certain places that the accuser has listed.  You may not be able to keep firearms as a result of an order against you.  Any violation of the order is a criminal charge and could be punishable by a year in jail or $1000.00 fine or both.

If you are in need of representation because you need or have been served with a Protection Order, the attorneys at Wilka and Welter are experienced and able to assist you.

Posted in Uncategorized, Wilka & Welter LLP Law Blog.