Surviving Domestic Violence: Should you file for a Protective Order?

Are you in an abusive relationship? Does your spouse abuse or threaten you and/or your children? Are you constantly planning to get away, but feel crippled by the fear that your significant other might come after you?

A protective order is a tool that you may want to use to keep yourself and your family safe. However, it can be tricky to evaluate whether you’d qualify for one, or what the process to obtain a protective order is. Sometimes, law enforcement agencies or child protective services will suggest that you apply for a protective order in lieu of any actual agency action. But this is not always the answer. Here are some tidbits you might find helpful:

What is a Protective Order?

Most people use terms like “TRO, PO, and Civil Restraining Order” interchangeably, yet they are all a little bit different. Protective orders can be filed under several statutes. The most common protective order is filed under La. R.S. 46: 2131, also known as the Domestic Abuse Assistance Act. This law provides assistance for survivors of domestic violence, and describes domestic abuse as “including, but not limited to, physical or sexual abuse.”

Typically, while it can and does vary depending on the jurisdiction you’re in, the Court is generally looking for instances of serious physical abuse. This usually falls under categories such as slapping, punching, choking, kicking, etc., or threats to cause seriously body harm or death to someone.

Who can apply for a protective order under La. R.S. 46:2131?

Under the statute, only family and household members with a sufficient relationship can apply. Family members, as defined in La. R.S. 46: 2132, include “spouses, former spouses, parents and children, stepparents and stepchildren, foster parents and foster children.”

Household members means any person living in the same residence with the defendant and who is involved or has been involved in a sexual or intimate relationship with the defendant.

Where can I file for a protective order?

If you decide to file for an Order of Protection, you will typically go to the clerk of court. This can be:

• In the parish where the marital household is located
• In the parish where the defendant lives
• In the parish where the abuse happened
• In the parish where the person seeking the protective order lives
• In the parish where an action for divorce could be brought, pursuant to La. Code of Civil Procedure Article 3941(a).

What happens next?

Once you go to the clerk of court, they should issue you a blank form titled “Petition for Protection from Abuse.” It will have a series of blank lines for you to fill in your information. You can choose to keep your address confidential. There will be a page where you will be able to fill in “Most Recent Incident,“ and “Past Incidents of Abuse.” It is very important that you be as specific as possible about the instances of abuse. When you get to court, your testimony will be limited to what you put on this piece of paper. Take your time and ask for extra paper if you need it!

Your petition will then be handed to a duty judge, and they will either grant or deny a temporary restraining order. Whether they grant or deny the temporary order, this will still be set for a hearing at the courthouse, usually within 30 days. Even if your temporary order is granted, that does not mean that you will prevail at the hearing.

Whether your temporary order is granted or denied, the Courthouse will call and let you know, and will also send you notice of your hearing date. At this hearing, the Commissioner/Hearing Officer or Judge will determine whether or not to grant a protective order for anywhere from 3-18 months.

This hearing is important. Call a lawyer, at the very least for a consultation. There are serious consequences that can result from having a protective order issued against you.