Karen L. MacNutt
Copyright (c) 1993 by Karen MacNutt
This article was originally published in Women & Guns magazine. It is being made available through We are AWARE, PO Box 242, Bedford, MA, 01730-0242, 781-893-0500. No changes are to be made to this document without the author's written consent. Reproduction or distribution without my permission is allowable so long as it is not for profit and is accompanied by this notice.
Karen L. MacNutt, a Boston attorney, is the legal editor for Women & Guns magazine, and a board member of AWARE. She is an active rifle and pistol competitor, author, journalist, and well known lecturer. She can be contacted at 781-963-6337.
"Nightmare ends in death," read the headline.
Estranged husband violates restraining order to murder wife
then kills self. We did all we could, says judge . . .
People shake their heads, asking why would anyone do
such a thing? Sometimes drugs or alcohol are involved.
Sometimes the aggressor has a long history of violent
behavior. Why people murder someone they supposedly love is
beyond the scope of this article. It is enough to say it
Although the press dwells on shootings, women are
strangled, stabbed, beaten, run over by cars and, when all
else fails, have their homes set on fire.
How do you protect yourself from such violently
irrational behavior? Most of us, fortunately, do not have
friends who love us to "death". But, one can not always tell
who will develop the type of compulsive behavior which leads
to trouble. If you find yourself in an abusive situation,
your first step is to end the relationship and separate
yourself physically from your tormentor.
It is a good idea to get a restraining order from a
court to enforce the separation. For most people, that will
stop the problem.
What is a restraining order and how does it work? A
restraining order is simply an order from a judge
telling someone not to do something. Sometimes it is called
an injunction. If the judge orders someone to do something,
such as pay child support, it is called a court order. Court
orders, injunctions and restraining orders are collectively
called "equitable relief". Law schools spend a full year
teaching students the meaning of the word "equitable".
Rather than trying to understand the legal definition of
"equity", just think of it as a name.
Court orders or injunctions have many purposes.
They are often used to preserve the status quo, that is to
prevent things from changing, until the court has a full
hearing on a particular issue. Courts usually require the
person seeking a restraining order to show three things: 1.
That they are likely to succeed in the eventual law suit; 2.
there will be irreparable harm to the person if the order is
not granted; and 3. the person against whom the order is
issued will not suffer irreparable harm because of the order.
For example, if you and your neighbor disputed your
property line, and your neighbor was going to cut down a tree
you felt was on your land, you could get a restraining order
preventing him from cutting down the tree until the court
could determine where the property line was. The neighbor is
not hurt by being prevented from cutting down the tree, but
you would be injured in a way money can not compensate
adequately once the tree is gone.
A restraining order does not imply someone is bad or
that a wrong has taken place. It is the court's way of
preventing trouble or freezing the situation until it can be
looked at closer.
In an emergency situation, a person can go to court and
get a restraining order "ex parte". "Ex parte" is a Latin
term meaning the other side is not present. In such
situations, the judge only hears one side of the story.
The person seeking the order must file a statement with
the court under oath, called an affidavit, stating the facts
they believe support the court's granting the restraining
order. Sometimes a written argument, called a "brief" is
Emergency orders granted "ex parte" can b�F�-
<<This story appears to be incomplete.>>
Modified Tuesday, November 17, 2009
Copyright @ 2007 by Fathers' Manifesto & Christian Party