RESTRAINING ORDERS

RESTRAINING ORDERS

Karen L. MacNutt

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This article was originally published in Women & Guns magazine. It is being made available through We are AWARE, PO Box 242, Bedford, MA, 01730-0242, 781-893-0500. No changes are to be made to this document without the author's written consent. Reproduction or distribution without my permission is allowable so long as it is not for profit and is accompanied by this notice.

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Karen L. MacNutt, a Boston attorney, is the legal editor for Women & Guns magazine, and a board member of AWARE. She is an active rifle and pistol competitor, author, journalist, and well known lecturer. She can be contacted at 781-963-6337.

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"Nightmare ends in death," read the headline.

Estranged husband violates restraining order to murder wife

then kills self. We did all we could, says judge . . .

People shake their heads, asking why would anyone do

such a thing? Sometimes drugs or alcohol are involved.

Sometimes the aggressor has a long history of violent

behavior. Why people murder someone they supposedly love is

beyond the scope of this article. It is enough to say it

happens.

Although the press dwells on shootings, women are

strangled, stabbed, beaten, run over by cars and, when all

else fails, have their homes set on fire.

How do you protect yourself from such violently

irrational behavior? Most of us, fortunately, do not have

friends who love us to "death". But, one can not always tell

who will develop the type of compulsive behavior which leads

to trouble. If you find yourself in an abusive situation,

your first step is to end the relationship and separate

yourself physically from your tormentor.

It is a good idea to get a restraining order from a

court to enforce the separation. For most people, that will

stop the problem.

What is a restraining order and how does it work? A

restraining order is simply an order from a judge

telling someone not to do something. Sometimes it is called

an injunction. If the judge orders someone to do something,

such as pay child support, it is called a court order. Court

orders, injunctions and restraining orders are collectively

called "equitable relief". Law schools spend a full year

teaching students the meaning of the word "equitable".

Rather than trying to understand the legal definition of

"equity", just think of it as a name.

Court orders or injunctions have many purposes.

They are often used to preserve the status quo, that is to

prevent things from changing, until the court has a full

hearing on a particular issue. Courts usually require the

person seeking a restraining order to show three things: 1.

That they are likely to succeed in the eventual law suit; 2.

there will be irreparable harm to the person if the order is

not granted; and 3. the person against whom the order is

issued will not suffer irreparable harm because of the order.

For example, if you and your neighbor disputed your

property line, and your neighbor was going to cut down a tree

you felt was on your land, you could get a restraining order

preventing him from cutting down the tree until the court

could determine where the property line was. The neighbor is

not hurt by being prevented from cutting down the tree, but

you would be injured in a way money can not compensate

adequately once the tree is gone.

A restraining order does not imply someone is bad or

that a wrong has taken place. It is the court's way of

preventing trouble or freezing the situation until it can be

looked at closer.

In an emergency situation, a person can go to court and

get a restraining order "ex parte". "Ex parte" is a Latin

term meaning the other side is not present. In such

situations, the judge only hears one side of the story.

The person seeking the order must file a statement with

the court under oath, called an affidavit, stating the facts

they believe support the court's granting the restraining

order. Sometimes a written argument, called a "brief" is

also submitted.

Emergency orders granted "ex parte" can bF-

<<This story appears to be incomplete.>>

Modified Tuesday, November 17, 2009