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DOMESTIC ABUSE AND RESTRAINING ORDERS

by Attorney Gordon S. Johnson, Jr.

Perhaps one of the most significant developments in divorce law in the last decade has been the prevalence of harassment and abuse restraining orders. Under the restraining order statute, a party, either as part of a divorce action, or independent of such action, can get a court order which prohibits a wrong doer from having any contact with the victim of such actions.

These actions occur in primarily two situations: Domestic Abuse and Harassment Situations. This material is primarily directed to Domestic Abuse Restraining Orders.

Domestic Abuse restraining orders are available when a family member has intentionally inflicted physical pain, physical injury, illness or threatened to engage is such conduct.

Getting a Domestic Abuse restraining order is, much like divorce, a two step process. First, there is a temporary or interim order, and then a final injunction, after a full hearing. But unlike the divorce law, and almost all other legal actions, the temporary or interim order can be issued by the judge, without the other party having the right to a hearing. The statute explains this procedure as follows:

TWO­PART PROCEDURE. Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

Filing. Such actions can quite easily be filed without the help of an attorney. The clerk of courts of each county have forms which most people can fill out, without assistance. Such form merely requires an explanation of the type of abuse alleged to have occurred. A filing fee of $180, however, is required.

In most cases, unless the petition fails to state reasonable grounds to believe that the petitioner has been the subject of this type abuse, the court will issue the temporary order, upon being receipt of the petition. This temporary restraining order is only effective until such time as the court can schedule a full hearing on the final injunction. Such hearing must be scheduled within 7 days after the temporary restraining order is issued, except in certain limited situations

At the hearing, a judge or family court commissioner may grant an injunction ordering the respondent to refrain from .committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, or any premises temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney to contact the petitioner unless the petitioner consents to that contact in writing, or any combination of these. Such an order can be good for up to two years.

Violation of a domestic abuse injunction can result in arrest and significant criminal penalties.

Similar statutes are available for harassment and child abuse.

For the full text of the domestic abuse restraining order, CLICK HERE.

DIVORCE OVERVIEW COMMENCING A DIVORCE THE TEMPORARY HEARING CUSTODY CHILD SUPPORT MAINTENANCE PROPERTY SETTLEMENT

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