Restraining Order Violations and Relocation Rights During Divorce: A Comprehensive Guide

People get married because they expect to spend the rest of their lives together. But unfortunately, things don't always turn out this way. There are a number of different reasons a couple may decide to end their marriage. Divorces can be complicated, messy affairs, especially if there are children involved.

In what situations can a court issue a restraining order?

In cases involving harassment or violence, the stress multiplies tenfold. A restraining order might be necessary to protect yourself and your children. Courts issue restraining orders in a variety of scenarios—from cases of domestic abuse and stalking to pretrial and sentencing orders for crimes of violence. If your spouse violates this restraining order, the legal dynamic changes in many significant ways.

What are restraining orders?

Restraining orders are court orders implemented to protect one individual from another. These orders are issued in situations involving stalking, harassment, violence, or sexual assault. If your spouse has a restraining order against you and your children, they must comply with the terms outlined. They must stay a predetermined distance from you and your children.

Are children always included in a restraining order?

There are certain cases where children might not be included in the restraining order. In these circumstances, your spouse will be required to maintain a distance from you, but they may still be permitted to contact your children. This is the case when the court determines that the parent poses no danger to the children. The non-custodial parent might have rights to visitation or supervised visitation.

What happens if a restraining order is violated?

If you violate a restraining order, you've directly disobeyed court orders. This means you're in contempt of court. An abuse prevention order is a civil order, but violating certain parts of the order is a criminal offense.

What are the penalties for violating a restraining order?

This is a criminal charge. You might receive hefty fines, and the judge may decide to imprison you for a short period of time. Before a person can be charged with violating a restraining order, though, the judge needs to see proof that a violation occurred.

How do you prove a violation?

Who must prove a restraining order was violated?

The victim is the one who needs to provide the proof. If your spouse has violated a restraining order and contacted you or your children, you need to provide proof that the order was violated. The first thing to do is validate that a restraining order is currently in place. It's important to establish that the order was legally issued. The second thing you have to prove is that your spouse was aware of the order's existence. In some cases, this is easy. If the restraining order was served personally to your spouse, the person who served it can testify that they knew about the order. It may sound silly to need to prove these things. But there have been cases where these basic facts couldn't be proven. One example would be a hastily-issued emergency order. If the order had just been issued, the spouse may not yet have received information about it. The final piece you need to prove is that the restraining order was intentionally violated. The key word here is "intent." If you can't prove that the violation was intentional, you won't have a case. For example, if you both accidentally crossed paths in public because your spouse didn't realize you were there, this wouldn't be an intentional violation.

When Restraining Orders Don't Work as Intended

Restraining orders are meant to protect you, but they don't always work like they're supposed to. Your spouse may break the order due to frustration or anger. You might feel the need to relocate for your own safety. But you should know a few things before deciding on this course of action.

What are the rules about relocation?

When a person relocates in the middle of or after a divorce settlement, there tend to be rules about that relocation. At least 60 days before the planned move, the parent who plans to move must provide notice.

What qualifies as relocation in a custody case?

"Relocation" involves moving 50 or more miles from your original location. You also need to stay there for a minimum of 60 days. Family trips and vacations don't count.

What notice must a parent give before relocating with a child?

In every state, the relocating parent needs to give a written notice of relocation to the other parent. This notice needs to include:

• The date of the move
• Location

Most states require notice to be given in advance. The other spouse has a certain period of time to object to the relocation.

Can a parent who violated a restraining order object to relocation?

However, if they've violated the restraining order, they may not object to the relocation.

Relocation Rule	Requirement	Impact on Restraining Order Cases
Distance Requirement	For a situation to be considered relocation, the move must be at least 50 miles from the original location and must last for at least 60 days	When there is violence or harassment, a restraining order may be needed to protect you and the children
Written Notice	Every state requires the relocating parent to provide notice in writing to the other parent	If he has violated the restraining order, it is likely he may not object
Court Approval	A judge may approve for relocation	Certainly, a judge will consider violation of a restraining order, especially if the order was for violence

Can a judge approve relocation even if the other parent objects?

Even if your spouse objects, a judge may still approve your relocation for a number of reasons. You may be embarking on a new career, have family in the new area, or be pursuing a better education for your children.

Do restraining order violations influence relocation decisions?

Judges will definitely take into account any restraining order violations, particularly when the order was related to violence. The judge's job is to make the decision in the best interest of the child.

Starting Your Life Again After Violence

When you marry, you expect to live happily ever after and grow old together. Unfortunately, this isn't always the case. Couples split up for a variety of reasons. When children are involved, this adds more stress and complication. Blatant disregard of restraining orders will carry serious consequences for offenders. When there is violence or harassment, a restraining order may be needed to protect you and the children. If he violates the restraining order, the game changes considerably.

Understanding Restraining Orders in Detail

What is a restraining order?

A restraining order is an order the court implements to protect a person from another where violence, harassment, sexual assault or stalking is involved. The parent under the restraining order is required to stay a certain distance from the other parent, their children and family for safety reasons.

Can a parent under a restraining order still have visitation?

In some cases, the children may not be added to the order. If the children aren't in any danger and the issue is only with the other parent, the non-custodial parent may have visitation rights or visitation under supervision.

What if he violates a restraining order?

Violating a restraining order means he's in contempt of court, and it is a criminal offense. He can be fined and imprisoned if the judge so chooses. Just as with any crime in America, it must be proven that he did violate the order.

Proof of the violation and his defense

Who has the burden of proof in a restraining order violation case?

The burden of proof is on the victim of the violation. It must be proven to the court that he did violate the order. First, it must be validated that there actually was a restraining order in place that was legally issued by the judge. You will then need to prove that he knew the order existed. For example, if the order was an emergency order issued quickly by the judge, he may not have known about it. Finally, you will have to show that he intentionally violated the restraining order. An example of this would be if you two accidentally cross paths at the same store. This wouldn't be his fault and wouldn't be considered a violation.

When Protection Isn't Enough: Considering Relocation

Unfortunately, a restraining order is there for protection but doesn't always work. Many times, the parent under the order knows about it but breaks it anyway out of anger or frustration. He may be determined to make you pay for the order and not care of the consequences at the time. In this case, you may be tempted to relocate, but there are things you should know before deciding to go this route.

General rules of relocation

Do you need a judge's approval to relocate with your child?

There are typically some general rules that apply to relocation. In general, you need the judge's approval to move your child's residence if you have joint legal custody and you want to move more than 100 miles from where the child lived when your family court case started.

Do vacations count as relocation?

Vacations or any family trips are not included in this.

What must be included in a relocation notice?

It must have the date and location of the move listed, and most states have a certain amount of notice the relocating parent must give.

Can the other parent object to a relocation notice?

Once he receives the notice, he will have a certain amount of time to object.

Why might a judge approve relocation?

There are many reasons a judge may approve for relocation. Some of these include:

• A new career
• Education for the child
• Family in the other area

What standard do courts use in relocation cases?

He has an obligation to provide for the child's best interest.

Overall

If you find yourself in this situation, give us a call. We have the knowledge and expertise to guide you in what is best for you and your child. We can help get your paperwork filed and get you moving in the right direction.