November 17, 2014
Rhode Island Restraining Orders: Filing, Notice, and Hearings
Once you have figured out the first step in obtaining a restraining order in Rhode Island: where to file for a restraining order, the next step is to actually file for the restraining order. Then, notice must be given to the defendant and you must proceed to a hearing within 21 days. Obtaining the help of a Rhode Island Restraining Order Lawyer for this process is essential. The restraining order lawyers at Abilheira Law explain the process of filing for a restraining order, serving the defendant, and the restraining order hearing in today’s blog.
How do I file for a restraining order?
When you arrive at the courthouse, you should go to the Clerk’s Office. Make sure to go to the proper clerk: Family Court, District Court, or Superior Court. The clerk will give you all the necessary paperwork to fill out. Some Rhode Island courthouses also have a domestic violence office with employees who specialize in helping individuals file for restraining orders.
The first document you will need to fill out is called a “complaint.” On the complaint, you will be the plaintiff/petitioner and the person you are seeking the order against will be the defendant/ respondent. The title will differ based upon whether you are in district court or family court. Be sure to have an address and phone number for the defendant, as notice to them is required.
As part of the paperwork, you will be required to fill out an affidavit. An affidavit is a sworn written statement. In your affidavit you should be truthful and as detailed as possible. List all incidents of violence, threats, harassment, and/or stalking. Be specific when describing what occurred and try to include dates. Be sure to tell the judge why you need the courts protection.
After your paperwork is complete, the Clerk will bring you and your paperwork to a judge. The judge will review your affidavit to see if there are grounds for a restraining order. The judge may also ask you questions. The judge will likely issue a temporary restraining order that will remain in effect for 21 days. The judge will also set a date for a hearing for the final order, which will be held within 21 days.
What kind of restraining order will I get?
There are three different kinds of restraining orders in Rhode Island.
1) Temporary Restraining Order or TRO. A temporary restraining order is the usual route for obtaining a restraining order and follows the process explained above. The purpose of a TRO is to providence emergency, but short term protection until a full court hearing. Again, a TRO will only last up to 21 days. After 21 days, you will be required to have a full hearing to extend the order.
2) Emergency or Ex-Parte Restraining Order. These restraining orders are handled at a local police department, when the courts are closed, at night, on weekends, and on holidays. The police department will call a judge who will usually grant the order over the phone. Because these restraining orders are only granted in true emergencies, the defendant is not notified. For that reason, the order will expire at the end of the next business day, when you will have to go to court and file the necessary paperwork for a TRO.
3) Final order. The final order is granted after a full hearing and typically lasts for 1 to 3 years.
How can a restraining order help me?
If you get a restraining order in Rhode Island District Court, the judge can order the defendant to:
- Stop contacting you, assaulting you, harassing you, or interfering with you in any way at home, on the street, or elsewhere
- Leave the household immediately if you live together, unless the defendant is sole owner or legal tenant of the home;
- Hand over any firearms in his/her possession to the authorities and forbid him/her from buying or possessing firearms.
If you get a restraining order in Rhode Island Family Court, the judge can:
- Order the defendant to stop contacting you, assaulting you, harassing you, or interfering with you in any way at home, on the street, or elsewhere
- Order the defendant to vacate the household immediately if you live together, even if the defendant is the sole owner/tenant of the home
- Award you temporary custody of any minor children
- Order the defendant to pay child support for up to 90 days;
- Order the defendant to hand over any firearms in his/her possession to the authorities and forbid him/her from buying or possessing firearms.
How do I give notice to the defendant?
Because a restraining order is not valid unless the defendant has been notified, a sheriff from the court must “serve” the defendant. This is done through the court, at no cost to you. A sheriff will serve the defendant with a copy of all the paperwork you filed to receive a restraining order, including the complaint and affidavit. The defendant will also be notified of the hearing date.
What will happen at the hearing?
A full hearing will be held within 21 days of the issuance of the temporary restraining order. This will give both the plaintiff (the person seeking the restraining order) and the defendant an opportunity to testify and/or present evidence or other witnesses on their behalf.
It is advantageous for both parties to have an attorney to represent them at this stage of the proceeding. The plaintiff will have the burden of proof and must prove to the judge that they need the continued protection of a restraining order. The defendant, who could face jail time for a violation, will obviously try to fight against the order.
If you need help filing for a restraining order or need representation at a restraining order hearing, call the Rhode Island Restraining Order Lawyers at Abilheira Law today for a free confidential consultation.