Restraining Orders
What is a Restraining
Order?
Domestic abuse, child abuse,
harassment and stalking are crimes which impact people from all
communities, cultural backgrounds and economic levels. Restraining
orders provide a civil remedy victims can use to increase their
safety and to hold the offender accountable. It is possible to
secure a civil order for protection while an offender is being
prosecuted in the criminal justice system.
This page does not
provide legal advice. It is meant to
give a basic overview of the steps necessary to secure a restraining
order as well as your rights in obtaining an order in Wisconsin.
Here are some resources you may consult in order to get more
information and assistance:
- Your county’s Family Court
Commissioner.
- Your county’s District
Attorney’s Office or Victim/Witness Assistance Program.
- Local domestic violence,
sexual assault or child abuse advocacy agencies.
A restraining order
is a court order that prohibits contact and/or certain behavior
directed to the person needing protection. It may be referred to as
a civil order for protection, a stay-away or no hit order, an
injunction or a temporary restraining order. They are different from
bail or bond conditions, probation rules or a 72-hour no contact as
condition of arrest order.
You do NOT need an
attorney. Wisconsin law allows you to
seek a restraining order without a lawyer's help. Many people feel
more comfortable hiring an attorney, especially if there are
concurrent criminal or family law cases which stem from the abuse.
Service
representatives such as:
victim/witness or family violence specialists and domestic violence
advocates can provide support in obtaining a restraining order. They
may be able to help you file papers and attend court hearings with
you, but cannot speak for you in court.
Forms and
information about restraining orders
are available at your county courthouse, usually in the
clerk of courts office.
Cost varies
depending upon the type of order. There is no cost to file and serve
Domestic Abuse Restraining Orders.
The cost for harassment orders may be waived if the harassing
behavior involves domestic abuse or stalking behavior. You may be
able to have filing and service fees waived if you are low income.
When you file your petition, ask how you can qualify.
Respondents face a
mandatory firearm surrender that goes
into effect when domestic abuse and child abuse final injunctions
are granted. The court may order the respondent of a harassment
injunction to surrender firearms if there is clear and convincing
evidence that the respondent may use firearms to harm another or the
public.
You enforce your
temporary restraining order or final
injunction by reporting violations to law enforcement. There are
criminal penalties for respondents who knowingly violate valid
orders, and Wisconsin law enforcement officers are mandated to make
an arrest when they have reason to believe an order has been
violated. Carry a copy of your order with you at all times.
Three types of
restraining orders can be obtained
for a number of reasons. They are primarily defined by the
relationship that exists between the parties. The three types are:
Domestic Abuse:
If an adult has intentionally caused you physical pain, injury or
illness; has impaired your physical condition; has made you the
victim of any Wisconsin sexual assault law; or threatened to harm
you physically or sexually, you may ask for a domestic abuse
restraining order if one of the following describes your
relationship to the abuser.
- you are related by blood or
adoption; or
- you are married or have been
married to the person who has abused you; or
- you have a child in common
with the person who abused you; or
- you have lived or are living
with the person who abused you; or
- you are receiving in home or
community care from the person who has abused you; or
- you are in (or were in) a
dating relationship with the person who has abused you; or
- you are under the
guardianship of the person who has abused you, as defined by
Wis. stat. 880.01(3).
Harassment:
If a person attempts, threatens or does strike, shove, kick or
otherwise subject you to physical contact; or repeatedly acts in a
harassing or intimidating manner toward you for no legitimate
purpose, you may ask for a harassment restraining order. Harassment
orders are also obtained by victims of stalking.
Child Abuse:
If a child is physically injured by other than accidental means, is
a victim of sexual assault or exploitation, or is permitted or
forced to violate prostitution laws, or is emotionally damaged by
the behavior of an abusive adult, the child, a parent, stepparent,
or legal guardian may ask for a child abuse restraining order on
behalf of the child.
A Two-Step Process
The person who asks for a
restraining order is called a petitioner, because
they petition the court to order another person to stay away from
them or to stop hurting them. The person being asked to stay away is
called the respondent, because they have the right to "respond" to
the court as to what is said in the petition.
Step 1: Temporary Restraining
Order (TRO)
People ask for TROs because they
need immediate protection. It is also the first step in obtaining a
longer term, "permanent injunction." To obtain a TRO:
- Decide which type of
restraining order fits your situation.
- Fill out forms asking for
protection, giving specific examples of the abuse. Make sure you
include the date, time and brief description of every incident
that caused you fear or injury.
- Take the completed forms to a
county judge or court commissioner. The office where you
obtained the forms can tell you where they should be returned.
- When you turn in the form,
you will go before a court official who will conduct a temporary
restraining order hearing. You will be asked about the alleged
abuse or why you need a restraining order.
- The judge or court
commissioner may issue a restraining order for up to seven days.
If a temporary restraining order (TRO) is granted, it goes into
effect immediately after the abuser is officially served with
the paperwork instructing him/her to stay away from you. A date
for the next hearing is set; the purpose of the next hearing is
to change your temporary restraining order (TOR) into a
permanent injunction that can be enforced for up to two years.
- A law enforcement agency will
serve the TRO on the respondent. This means your abuser is
informed of the fact that you have obtained a TRO, of the type
of abuse you say happened, and the date and time of the next
court hearing. In the TRO, the respondent is officially notified
to stay away from you "temporarily," and that they can be
arrested for violating the TRO. You can also hire a private
process server if you feel the respondent could be more
effectively located and served by someone who is not a uniformed
officer.
- Obtain written proof or
"affidavit of service" from law enforcement that the TRO was
served, because the court will ask for that proof at the
Injunction Hearing.
Step 2: The Injunction
Hearing
- You must appear in court to
turn the restraining order from a Temporary Restraining Order
into a Final Injunction that can protect you for up to two
years. (The time and place for this hearing was set during the
TRO hearing.)
- The court official will allow
you and the respondent to testify. It is important to bring
information such as police or medical reports that back up your
petition. You may only be allowed to discuss incidents you
outlined in the TRO petition, so be sure whenever you fill out
forms to do so completely. You may be able to have witnesses
testify on your behalf.
- If the court finds that the
abuse or harassment has occurred or may occur, he or she will
issue a Final Injunction for the period of time that you
request. You can ask that an injunction be in effect for up to
two years, and most victims ask for two years.
- You may ask the court to set
a time for the respondent to collect his or her belongings if
you live together. You should ask that a police officer or
sheriff be present at that time.
- You will be given a copy of
the court's order. If the respondent is not at the hearing, the
order will be served on him or her by law enforcement.
Please remember that an injunction alone may not
be enough to make the abuse stop. It is only part of a safety plan
you will need to develop in order to increase your safety. You do
not have to go through this alone—there are people in your community
who care and can help. For more information about services in your
area:
- Use the
Wisconsin Resource Directory for Victims
of Crime (which lists the
services available in each Wisconsin county)
- NCADV—National Coalition
Against Domestic Violence 1-800-799-SAFE (7233).
- RAINN—Rape, Abuse & Incest
National Network 1-800-656-HOPE (4673)
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