Restraining Order vs. Order of Protection
Most people do not know the difference between a Restraining Order and a Protective Order in Texas. People often use the terms “restraining order” and "protective order” interchangeably; however, there is a big difference between the two in Texas.
Both protection orders and restraining orders are implemented by the courts and signed off by a judge. The length of time that the orders are in place, the reasons that they are used, and the potential penalties that the offender will face if they violate the orders, however, are substantially different.
So what is the difference between a restraining order and an order of protection?
Protective Order vs. Restraining Order in Texas
What a Protective Order Does:
- Specifically prohibits domestic violence
- Court must find family violence to be an issue
- Can include protection for a person, their children, and their family members
- Lasts for up to 2 years
What a Restraining Order Does:
- Prohibits a person or entity from certain actions, such as harassment, contact, hiding assets, etc.
- Not specific to family violence
- Can include protection for a person, their children, and their property and assets
Restraining Orders in Texas – What Is a Restraining Order?
In Texas, a Restraining Order is a court order instructing a person or entity to not take a certain activity. Restraining orders can be written to protect you or your property if you have filed a divorce and you are afraid the other party will cause you harm.
An example of a typical restraining order would be to restrain a divorcing spouse from hitting, hurting or harassing you; taking the child from the current residence; or withdrawing money out of a bank or retirement account; and / or selling any assets.
A restraining order is obtained to keep people safe and to keep people from trying to hide assets. Restraining orders can be lengthy and contain numerous provisions. They are commonly used in divorces filed in Texas.
Protective Orders in Texas
A Protective Order is a completely different type of court order. A Protective Order exists when domestic violence has occurred, and is issued for the protection of the victim.
There is a legal standard that must be met in a protective order. A court must find that family violence has occurred and it must find that family violence is likely to occur in the future. When both findings have been made, a court can issue a protective order for up to two years.
The zone of protection of a protective order can encompass the victim, the children, or both. It can also include other family members.
The burden of proof for a Protective Order is whether the preponderance of the evidence favors the accusing party. This burden of proof is lower than a criminal case, which requires proof beyond a reasonable doubt.
Penalties for Violating a Restraining or Protective Order
One of the biggest distinctions between these two orders is the penalties. If a party to a divorce violates a restraining order, the violation can be brought to the court’s attention. While the court has the authority to send an offender of a restraining order to jail, this typically does not happen.
When an abuser violates an order of protection, they can face serious criminal charges, as well as a contempt of court charge for violating a court order. In this case, the victim should call the police if an abuser violates an order of protection, as the police can enforce protective orders, while they do not have authority over restraining orders.
The actual charges that are assessed for infraction will depend on the individual circumstances, including the severity of the violation and whether or not prior transgressions have occurred.
The party served with a protective order will usually fight this in court to avoid having a history of domestic violence. A finding of family violence can be used against that party in a child custody case and it may affect a party from keeping their job or getting employment in the future. It could also be used against that person in any future custody disputes.
The protective order will have terms that requires the offender to stay a certain number of feet away from the victim and the offender cannot come within a specific distance from the victim’s employment.
Another false assumption is that people think abandonment is commonly used in child custody cases. It is not. Abandonment is a lot different from separating for a few months. Abandonment is when you have been gone for a year or more and you have not supported or contacted your children. It is an element of a divorce which affects primary custody.
How Do You Advise Clients That Are Contemplating A Divorce In Texas?
My office can advise clients with telephone consultation or an in office consultation. The consultation is free. Straightforward questions are asked and answers given to let our clients know if we can help them. We also advise you about the cost of hiring our firm and options available about payment plans on attorney fees. All information discussed is confidential and protected by the attorney client privilege.
We ask questions about past court orders, current legal actions, property, retirement plans, financial accounts, vehicles, and any other significant assets they have. I also ask them how many children they have, their ages, about any court orders for child support, and whether they live with them or not.
I find out all of that information and I then I go through a set of child custody questions. These questions have been specifically devised during my many years as a family law attorney. It covers all of the necessary topics that I need to know to evaluate a case I ask all the questions that are necessary to know if you can be successful for what you want in a child custody situation.
You do not have to have any information other than what you know. You can guess at the answers during the first consultation. It’s not difficult. We give you advice to determine whether we can help you get what you want. We know how to evaluate divorce cases concerning child custody and property division.