A temporary restraining order is typically issued in circumstances where immediate action is called for. Courts often issue "TRO’s" based on affidavits from a person whose interests are about to be harmed. For example, if you people with chainsaws are about to cut down your trees, the court would be in a hurry to act ,sometimes before giving the other side a chance to reply.
A preliminary injunction is usually issued only after the other side has been given an opportunity to reply and be heard, and has either consented to maintain the status quo or not made a sufficient showing to defeat the plaintiff’s claims. A permanent injunction is typically issued after a full trial of the merits, or on the consent or default of the other side.
A person who files for an Injunction for Protection/Restraining Order is known as the Petitioner. The Petitioner fills out a sworn affidavit provided by the Clerk of Court. There is no fee for this service. A duty judge usually reviews the affidavit the same day and decides whether to grant a temporary order, based on the allegations contained in the affidavit. If a temporary order is granted, the Sheriff’s Department is then given the responsibility to serve it on the person accused. This person is known as the Respondent.
The Court also sets a hearing within 15 days, and information of the date, time, and place of hearing are also served on the Respondent. The Respondent may appear at the hearing, but is not required to. The Respondent may also have a criminal defense attorney at the hearing. If the Respondent appears, they may present any witnesses and evidence to support their defense, including their own testimony. All testimony is recorded and may be obtained later by the State Attorney’s Office if there is a criminal investigation.
A restraining order, legally referred to as an injunction, is often issued in the event that a person brings about accusations of domestic violence or abuse or threats of bodily harm against a family member, spouse or cohabitant (someone he or she lives with). If you are served a restraining order, you will face a number of consequences - all of which a skilled attorney may be able to help you avoid.
If a restraining order is filed against you, you may be required to leave the home that you currently share with the person who is the alleged victim in your domestic violence, spousal abuse or child abuse case. Even if you own the home or pay the rent, you will need to vacate the premises immediately and cannot come into contact with the victim or come within a certain distance of the victim.
If you have been served with a restraining order, you can take action to have the injunction dismissed. In the case of a temporary restraining order, you may be able to prevent the order from becoming permanent. An experienced defense lawyer will be able to contest your restraining order in court and possibly have it dismissed, so you can go home and be with your family.
Contact Me about your Temporary Restraining Orders (TROs) and Injunctions or other Criminal Defense legal matter.
David M. Brandwein, P. A.
