Restraining Orders in Rhode Island
Posted in General on January 28, 2021
Restraining Orders in Rhode Island
A restraining order may be your best option if someone has harmed or threatened to harm you and you feel your life is in danger. Obtaining a restraining order can be daunting if you are not familiar with the legal system, so hiring an attorney to guide you through this difficult process can help put your mind at ease.
What is a restraining order?
A restraining order is a state-issued court order that prohibits an individual from harming another person by way of physical or sexual abuse, threats of violence, or stalking. A restraining order may be sought whether or not there is a pending criminal case against this individual or defendant.
Where do you get one?
In Rhode Island, it is your relationship with the defendant that determines where you should go to get a restraining order.
You should go to Family Court if you are seeking protection against any of the following people:
- Former spouse
- Person with whom you have a child in common
- Relatives by blood or marriage (see Rhode Island General Laws § 15-15-1(7)
You should go to District Court if you are seeking protection against any of the following people:
- Roommate you currently live with or have lived with within the past three years
- Person you share a substantive dating relationship with (see Rhode Island General Laws § 15-15-1(10)(i)-(iii)) or have shared a substantive dating relationship with within the past year
You should go to Superior Court if you are seeking protection against any of the following people:
- Former friend
- Anyone else
Please note that you must file for a restraining order in the county where you live to avoid any jurisdictional issues. The counties in Rhode Island include: Providence/Bristol, Kent, Washington, and Newport.
How do you get one?
Step 1– Determine which court you need to file the restraining order in based on the relationship between you and the defendant.
Step 2– Report to the clerk’s office of that court. The clerk will give you all of the necessary paperwork to fill out. It’s important to note that while the clerk may answer general questions you may have, s/he cannot provide you with any legal advice.
If the court is closed and you are looking for immediate protection, you may go to our local police station and request an emergency order. The police will issue this emergency order and contact a judge on your behalf to approve it. It is important to note that emergency orders only last until the next business day and can be issued without the abuser being present for the issuing, which is known as ex parte. On the next business day, you must go to the clerk’s office and follow the guidelines described above to get a TRO.
Step 3– Fill out all of the paperwork to the best of your ability. The first document you need to fill out is the Complaint. You will be the Plaintiff/Petitioner and the person you are obtaining the restraining order against will be the Defendant/Respondent. You need an address and phone number for the defendant/respondent because s/he must be served before the matter goes to a hearing. Next, you must fill out a written affidavit or statement describing the ways the defendant physically or sexually abused you, threatened to abuse you, or stalked you. It is important you are as specific as possible when describing what occurred. You must also provide the clerk with a photo ID and pay any associated fees if required.
Step 4– After doing all of this, the Court will grant you something called a temporary restraining order (“TRO”). The TRO goes effect immediately and lasts for up to 21 days to allow time for the defendant to be served.
Step 5– The defendant in the matter must be served. In the event the defendant cannot be located for service, the court will extend the TRO and a new summons will be issued. A deputy sheriff will serve the order for free or you may hire a certified constable to serve the order. Once it has been served, they will send a “return of service” form to you and the court showing the defendant was properly served. If you do not receive this “return of service” form, you should contact the Rhode Island Sherriff’s Department, your constable, or attorney, before your hearing date. If the defendant lives out of state, you need to contact whichever department you contacted to have the individual served.
Step 6– After the defendant is served, the court will set a hearing on the matter at the court the restraining order was filed in. You will get notice of this hearing date in advance. If the defendant fails to appear, the order is automatically granted. If the defendant appears and contests the order, the parties will go before the judge and the judge will determine whether or not to continue the restraining order. It is at this time that the defendant may present his or her defense.
If the restraining order is granted at this hearing, it can be in effect for up to three years depending on the particular circumstances of the case. A restraining order stays in effect until the date designated on the restraining order itself.
What happens if the defendant has firearms?
If the restraining order is granted, the defendant must surrender any firearms within 24 hours after receiving notice of the order. The defendant then must provide the court with proof that s/he properly surrendered the firearms or does not have any firearms in his or her possession, within 72 hours.
The defendant has a right to a court hearing within 15 days for the judge to review the matter and determine whether or not the firearms should remain surrendered or get returned to the defendant. The burden of proof lay on the defendant to show s/he would not pose a danger to you or anyone else should the court return his or her firearms. You will receive notice of the hearing.
What if you want to extend your restraining order?
As time goes on and if you are still in fear of the defendant, you can return to the court to apply for an extension before the restraining order expires. If you do not get an extension, you could always apply for a new order after the previous order has expired.
How much does getting a restraining order cost?
Family and District Court restraining orders are free of charge. However, there may be a small service fee if the defendant lives out of state.
Superior Court restraining orders require a fee. All or part of the fee may be waived by the Judge if income guidelines apply.
What happens if the defendant violates the restraining order?
Even non-threatening contact is a violation. Generally speaking, any contact made in person, by phone, letter, email, social media, or through a third party is considered a violation of the restraining order. However, sometimes the language of the restraining order may limit or expand certain contact, so it is important both parties understand what conduct is actually being prohibited by the issuing court.
Violating a restraining order that was issued in Family or District Court is a criminal offense while violating a restraining order that was issued in Superior Court is not. If the defendant violates a Family or District Court restraining order, s/he may be punished by up to one year in prison or up to a $1,000.00 fine.
Violations of a Superior Court restraining order are considered civil violations, so instead of being arrested, the defendant may be brought back to court for contempt of a court order. However, contempt may potentially lead to a period of incarceration depending on the circumstances.
What if there is no formal custody agreement in place for the children the defendant and I have in common?
If there is no formal custody agreement in place for the children you and the defendant have in common, most judges will award the plaintiff temporary custody with some sort of visitation, often supervised, for the defendant.
If you have any concerns about the defendant as a parent or having access to the children, you should contact a family lawyer or speak with an advocate before filing for the TRO. The best interests of the children are always put first.
What is the difference between a restraining order and a no contact order?
A no contact order (“NCO”) is issued as a result of a criminal charge. This NCO issues at arraignment whether the defendant is arraigned at the police station or court. Violation of a no contact order is a crime in and of itself and may constitute a violation of probation or a filing. Unlike a restraining order, a NCO expires when the case is over (dismissal or not guilty finding) or at the end of any probation, filing, or suspended sentence.
If you feel as if you need protection in the event the NCO expires, you may consider seeking a restraining order in Family Court, District Court, or Superior Court (based on the factors set forth above) in addition to the NCO. If there are issues regarding child support and/or visitation, you may want to obtain a restraining order in addition to a NCO.
What if I have a restraining order from another state?
If you have an active restraining or protective order from another state, that Order will follow you to the State of Rhode Island under the Full Faith and Credit Clause. Therefore, you should keep a hard copy of the restraining order with you at all times.
Facts and Statistics:
- All 50 states and the District of Columbia have statutes for some form of protection order.
- Section 2262(a)(1) makes it a federal crime to travel across state, tribal, or international lines with the intent to violate a protection order and to subsequently engage in conduct that violates that order.
- National Coalition Against Domestic Violence (“NCADV”) reports nearly 20 people per minute are physically abused by an intimate partner in the United States. https://ncadv.org/learn/statistics.
- According to NCADV, 1 in 7 women and 1 in 18 men have been stalked by an intimate partner to the point in which they felt very fearful or believed they, or someone close to them, would be harmed or killed.
- According to the Centers for Disease Control and Prevention (“CDC”), 1 in 3 women and 1 and 4 men in the United States have experienced violence from an intimate partner. https://www.cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html
- A National Crime Victimization Survey (“NCVS”) reports that during a 12-month period, an estimated 1.5% of persons age 18 or older were victims of stalking. https://www.bjs.gov/index.cfm?ty=pbdetail&iid=1211
- According to NCVS, the percentage of stalking victims was highest for individuals who were divorced or separated (3.3%), compared to those married, never married, or widowed.
- NCVS also reports a greater percentage of females were stalked than males (however, females and males were equally likely to experience harassment).
- The Bureau of Justice Statistics (“BJS”) reports approximately half (46%) of stalking victims experienced at least one unwanted contact per week, and 11% of victims said they had been stalked for 5 or more years. https://www.bjs.gov/index.cfm?ty=tp&tid=973
- According to BJS, 1 in 4 stalking victims reported some form of cyberstalking such as e-mail (83%) or social media messaging (35%).
- BJS also reports 45% of stalking victims felt fear of not knowing what would happen next and that more than half of stalking victims lost 5 or more days from work.