Steven Fernandez |

Restraining Orders

A divorce, separation, or child custody battle can cause tensions and emotions to run high. In some cases, these emotions have the potential to create a dangerous situation. When one spouse or parent feels threatened they may ask the court to issue a restraining order. Restraining orders can be temporary or permanent and are intended to protect one person from a reasonable threat of imminent harm.

When a court issues a restraining order the protected party has provided enough testimony and/or evidence to persuade the court that an order of protection is necessary. It is a crime to violate the terms and conditions of a valid restraining order.

What Does it Mean to Violate a Restraining Order?

Most states have guidelines that essentially say that it is a crime to intentionally violate a restraining order that you had knowledge of. In Illinois, you can be charged with the crime of violating a restraining order, as codified in 720 ILCS 5/12-3.4, if you “commit an act which was prohibited by a court or fail to commit an act which was ordered by a court as a remedy in an order of protection” when you “have been served notice of the contents of the order or [have] acquired actual knowledge of the contents of the order.” So, in Illinois, you can be charged with the crime of violating a restraining order if:

  1. You do something that is prohibited by a restraining order; or
  2. You fail to do something that is required by a restraining order; and
  3. You had actual knowledge of the contents of or were personally served with a copy of the restraining order.

What Does it Mean to have Knowledge of a Restraining Order?

You can generally gain the required level of knowledge in two ways.

First, you will be considered to have the required level of knowledge if you were present at the proceeding where the order of protection was issued against you. If you were present at the hearing, the judge will have taken the opportunity to tell you that the order was in effect and what you were specifically prohibited and/or required to do.

Second, you will be considered to have the required level of knowledge if you were personally served with a copy of the restraining order. Service can be completed by first-class mail and/or personal service by a law enforcement officer or other permissible service provider. Once service is complete you will be considered to have the knowledge required to violate the law.

What Happens if You Violate a Restraining Order?

Violating a restraining order is usually charged as a Class A Misdemeanor offense. A conviction for a misdemeanor violation can be punished by up to 12 months in jail and/or a fine of up to $2,500. Violations of restraining orders are very serious and judges are often persuaded to impose a mandatory minimum sentence.

In some cases, violating a restraining order can be charged as a Class 4 Felony. A conviction for felony violation can be punished by one to three years in prison and/or fines of up to $25,000. If you repeatedly violate the terms and conditions of your restraining order you will likely be faced with more serious criminal charges. Additionally, you may be charged with contempt of court for violations of a restraining order.

Just because you are accused of violating a restraining order does not mean that you will automatically be charged with or convicted of a crime. There are many situations where a violation will be accidental or inadvertent. If this is the case, you should take immediate steps to fix the violation and abide by the terms of the order of protection. For example, if a restraining order prevents you from going within 500 feet of your ex and you happen to go to the store at the same time, you have a responsibility to fix the situation.

In this case, that may require leaving the store and returning when your ex is no longer there. There are also situations where you may be falsely accused of violating a restraining order. An experienced criminal defense attorney can help to defend you against these baseless allegations.

If you have been accused of violating a restraining order during your family law proceedings it is important to hire an attorney to defend you against any potential criminal charges. A conviction for a restraining order violation can result in jail time, fines, and negative results in your civil family law case.