A random stranger has just served you with court papers. In these papers you see some sort of restraining order. Your blood pressure goes up. You skim it briefly, unable to really let it sink in. You are livid.
I can’t tell you how often potential clients call me in disgust: “He/she put a restraining order against me, so I can’t talk to my spouse or see my kids.” Or: “The Judge is so biased, he’s already put a restraining order against me, before court even started.” Or: “I can’t even go to my house under this order.” In most cases, these conclusions are incorrect.
Temporary restraining orders (TROs) are often misread or misconstrued. And TROs can easily be confused with protective orders and temporary orders. So, what is the difference, and why does this all have to be so confusing?
The fact is temporary restraining orders, temporary orders, and protective orders serve distinct purposes. And each requires a different “showing” (procedure) before they can be granted.
Temporary Restraining Order
In family law cases, temporary restraining orders are very common. They are often contained in a document called “Temporary Restraining Order and Order Setting Hearing.” The main thing to know about a temporary restraining order is that: (1) they last 14 days unless extended by a judge, so they can be very much temporary; and (2) if you read them, you’ll find that many TROs are just common-sense restrictions most people live by even if they hadn’t been served TROs.
My advice on a temporary restraining order is annoyingly simple…read it! And not just bits and pieces. I mean really, truly read the entire document. You should notice that TROs primarily restate what you should already know:
- Don’t hide the child from the other party
- Don’t change health insurance
- Don’t disparage (talk bad) about the other parent in front of the child
- In a divorce, don’t destroy or damage property, etc.
But, you say, I’ve never done things like that. Why do they think I would now? The answer is: they probably don’t. TROs are issued out of an abundance of caution. Attorneys are paranoid and want to ensure their client, the property, and the children are protected IF you ever do or might entertain doing those things. Judges come down very hard on parties that violate TROs.
Some TROs are very restrictive, however. For instance, you could be restricted from accessing the marital home, or your children. But these severe restrictions require a much higher showing.
For instance, to be kicked out of your home, your spouse would have to sign an affidavit/declaration showing family violence (a physical threat or threat of harm). To be excluded from your children, your spouse would have to sign an affidavit/declaration showing, essentially, that you pose an imminent danger to your kids.
But even if such restrictive TROs have been granted against you, take heart. TROs like this are granted without your side of the story, so they are temporary. At the temporary orders hearing, you will have a chance to fight back.
Many people confuse temporary restraining orders with requests for temporary orders. It’s common for the temporary restraining order document to list the TROs and then list what the other party wants after a temporary orders hearing is held. Don’t confuse the two.
If you think the temporary order requests are TROs you are likely to be rightfully angry and upset. Temporary orders (TOs) are very different from TROs, in two main ways.
First, TOs are granted by the judge after a temporary orders hearing; that is, after both parties have had a chance to present evidence. And, second, TOs last until the case is over (whether by trial or settlement). While both TROs and TOs are temporary, TOs can last for months.
Because TOs are longer and based on both parties’ evidence (testimony and exhibits), TOs have a much greater impact on your case. Temporary orders can set the tone for the rest of the case, for better or worse.
A temporary injunction is a form of temporary order, but refer to injunctions (think: rules) a party or both parties must follow. TROs can become temporary injunctions by agreement or by a judge’s ruling; the only real significant difference between the two is that whereas a TRO expires in 14 days, a temporary injunction lasts until the case finalizes. And they can become permanent injunctions in a final order, lasting indefinitely.
Many temporary injunctions are carbon-copies of TROs, and can include restrictions on drug and alcohol use; having a girlfriend/boyfriend overnight while in possession of the children (a “no-shack up” or “morality clause”); many “play nice provisions” like restrictions on talking bad about the other parent in front of the children, restrictions on talking about the case/litigation with the children, and not changing health insurance.
Protective Orders (POs) are the most restrictive of the three, but also the hardest to get. They are also the most misunderstood, probably because TV and movies make them appear easy to obtain, much like a temporary restraining order. Although temporary protective orders can be granted, these are temporary, and a hearing is required before a full protective order can be granted.
There are three main kinds of protective orders:
- Those based on family violence (assault or threats),
- Those based on harassment/stalking
- Those based on sexual assault
Whatever the basis for the PO, a PO is very restrictive. It can be in effect for 2 years or more. It can apply to the victim but also potentially their family. It prevents you from having a firearm. It can require that you take a half-year long batterer’s intervention program. It can even restrict your access to your children. And violating a protective order can lead to severe criminal punishment; generally, up to a year in jail.
Because POs are so severe, judges require strong evidence. All the more reason to get an attorney who specializes in family law cases, no matter which side you may be on.
TROs, TOs, PO can be overwhelming, and add stress to an already stressful situation. Once my clients understand a bit more about their purpose and when they can be granted, their blood pressure goes down, if just a little, and they are more focused on making well-reasoned decisions about their case.
If you want that kind of personal service for your family law case in Texas, give TLC Law a call at (903) 871-1714.