restraining order in wisconsin

What is the Difference Between a Harassment Restraining Order and a Domestic Violence Restraining Order?

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Wisconsin allows for two different types of restraining orders  or injunctions: harassment and domestic abuse. An injunction is a court order that orders a party to refrain from committing certain acts or doing certain things. The word restraining order and injunction are interchangeable except that a restraining order is generally granted for a temporary basis until there is a full hearing by the court to determine if an injunction is needed.  What is the difference between these two types of restraining orders?

The first type of injunction is for Harassment. The statute has several definitions for “harassment.”  First, the statute includes in the definition “striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse, sexual assault, or stalking; or attempting or threatening to do the same. This is typically used when the aggressor is not a member of your family.  The definition also includes “engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.” This can be filed against either a member of your family or someone who is not part of your family.  A harassment injunction can be effective for up to 4 years and can prohibit the harasser from coming to your home and contacting you in any form. Contact can mean via electronic means (social media, text messages, facetime/zoom, etc.), in person, by telephone or e-mail. Please remember that this list is not an exhaustive list for defining contact.  

This type of injunction is typically filed by someone who is being repeatedly contacted or threatened by someone and they have asked that person to stop contacting them. It is important to note that the key difference between a harassment injunction and a domestic violence injunction is who is engaging in the threatening behavior. If the behavior is coming from someone outside of your home and you are not in a relationship or have a familial relationship with them, speak to your attorney about filing a harassment restraining order. If the behavior is coming from someone who lives with you, in a relationship with you, or is a family member, speak to your attorney about filing a domestic abuse restraining order, if appropriate, although a harassment injunction can also be filed against someone in your family or one with whom you have a relationship if they are engaging in harassing behavior only.

For purposes of a domestic abuse injunction, the statute has defined “domestic abuse” as meaning when an adult family member, adult household member, adult caregiver, former or current spouse, former or current dating relationship, an adult with whom the person has a child in common, a sibling or step-parent is intentionally or threatening to inflict physical pain, injury or illness, impair their physical condition, sexually assault, stalk, or damage property. A parent may also file a child abuse restraining order for their child. Please discuss with your attorney your legal options related to filing  a domestic abuse restraining order or a child abuse restraining order.

A domestic abuse restraining order is filed by someone who fears for their physical safety. A domestic abuse injunction can last for up to 4 years and can prohibit the abuser from coming back or moving back into the household and contacting you. Contact can mean via electronic means (social media, text messages, facetime/zoom, etc.), in person, by telephone or e-mail. Again, please remember that this list is not an exhaustive list for defining contact. 

For both types of restraining orders/injunctions, if the harasser or abuser has access to fire arms and you feel that there is a legitimate threat to your safety, please reach out to an attorney immediately to discuss your legal options for protection. If there are fire arms or weapons involved in your case, the court can order for the weapons to be removed from that person.

If you believe that you are being harassed or you are a victim of domestic abuse, please contact our firm at (414) 258-1644 for a free consultation regarding your restraining order.

–Attorney Margaret Spring

How to Obtain and Enforce a Domestic Abuse Restraining Order in Wisconsin

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The effectiveness of domestic abuse restraining orders is now being questioned after the tragic shooting of Zina Haughton and her co-workers in Brookfield, WI.  Zina, we now know, had obtained a restraining order against her husband several days prior to the incident.  So, what is a restraining order, how do you obtain one and how does it protect you?

In Wisconsin, you may seek two types of restraining orders which are also referred to as injunctions:  harassment or domestic abuse.  Harassment injunctions, which are explained in more detail in another post on this blog, are typically used between parties who are not in a domestic relationship although can be used in those situations as well.  Domestic abuse injunctions are reserved for domestic violence which is defined as physical harm or the threat of physical harm.

The procedure for obtaining an injunction is fairly simple.  You go to the clerk of courts office in the county in which you reside and request an injunction or restraining order.  In Milwaukee County, you will need to go to room 711.  You will be given a fill-in-the-blank form to complete which includes space for the reasons why you want the restraining order.  Although different counties may use different forms, this is an example of a typical Petition for a Temporary Restraining Order.  Make sure you write down every incident you can remember which is consistent with harm or the threat of harm. It doesn’t matter how long ago the incident occurred although a recent “trigger” is usually required.  It may help if you spend some time at home typing or writing up these incidents while you have more time.  You can then simply say “See attached” on the form.

Once you complete your form, you will be taken to see a family court commissioner or judge.  The commissioner or judge will listen to your story.  If he or she feels that there is a reasonable basis to grant you a restraining order, they will award you a temporary restraining order and give you a court date to return for a hearing for a permanent restraining order.  You will then need to serve the person against whom you are seeking the restraining order.  The clerk will direct you to the county sheriff’s office who will do this usually at low or no cost depending on your circumstances.  There is no fee to obtain a domestic abuse restraining order.

The temporary restraining order will remain in effect until the hearing date.  The sheriff who serves the papers will remove the other person from your home.  At the hearing, the other party can show up and contest the granting of the injunction.  In that event, there will need to be a formal hearing and you will need to testify and/or prove your allegations.  If the court commissioner or judge believes your testimony and finds that there are sufficient grounds to grant the injunction, you will be granted a restraining order for up to 4 years.  If the other person doesn’t show up on the hearing date and you have proof that he/she was served, the court will automatically grant you the restraining order.  This is an example of  what the final injunction will look like.

The restraining order is only as good as your enforcement of the restraining order.  You will need to make multiple copies and take them to the police departments of where you live and work.  You may also want to provide a copy to your employer and keep a copy with you at all times!  If the other party violates it, this is a criminal offense and they can be arrested and charged for the violation.  However, if you allow contact or allow the person to come to your home, it may be difficult to prosecute violations later on.  This also sends the wrong message to the abuser.  They may not believe that you are serious or they may believe that they can intimidate or influence you to not enforce the injunction.  It may be difficult to cut ties so abruptly with this person.  Victims also tend to “feel bad” for their abusers by taking such a drastic action.  However, at some point, you need to worry about yourself and/or your children, not the person who has caused you harm.  It is very important to establish from the beginning that you are serious and you will enforce the injunction.

Most people will abide by the injunction and realize the seriousness of the situation.  However, there are some people who will ignore it or attempt to contact you to discuss your “issues”.  Be firm and enforce your restraining order by reporting the contact to the police Doing so once or twice is usually an effective deterrent against future contact or violations.

Unfortunately, there are also individuals who don’t care and will attempt to do you harm anyway, such as in the Zina Haughton case.  If you suspect you are or will be in that situation, it is imperative that you take extra precautions!  For example, stay somewhere safe and unknown to the other party for a period of time.  Or, if you are in the home, change your locks immediately.  Arrange for an escort between your home, work and school, if possible.  Notify your local police to the issues or potential issues.  Make sure you stay alert to your abuser’s presence at all times and if you see him/her, call the police immediately!  This should result in an arrest but, even if they don’t arrest him/her, the police will speak to that person which alerts them to the fact that you do intend to enforce the injunction.

The American Bar Association has published a list of additional things you can do to protect yourself from domestic violence.  Following these tips and suggestions may save your life!

Ultimately, you will need to get on with your life.  However, emotions do tend to cool down after a while and eventually, that person will also want to get on with their life.  You just need to get through that initial period.  If you take every precaution, seek help and enforce your injunction, your chances of staying safe will be much higher.

Wisconsin’s Harassment Restraining Order Explained

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When an ex or other person has intentionally hurt you, caused you physical injury and pain, or has damaged your property, there is hardly a question that court involvement is appropriate, and often necessary. But what if that person is not an ex or a significant other? Or has not actually touched you? Are there any legal protections are available from the court in those instances? The short answer is yes.

In Wisconsin, this type of restraining order to file is called a harassment restraining order. Harassment restraining orders are one of the types of restraining orders available to individuals in Wisconsin. In addition, there are restraining orders for domestic abuse and child abuse.

Individuals are often hesitant to file harassment restraining orders, because the threshold is seemingly unclear. Take a situation where a person continually calls you simply to bother you; when is the threshold met? The legal basis for a harassment injunction in Wisconsin is a pattern of harassing conduct with no legitimate purpose.  What does this mean exactly?  For example, if a person is calling repeatedly or is attempting to harass or intimidate you and doing so serves no legitimate reason, a harassment restraining order may be granted by the court. The individual who files the harassment restraining order must specify (in a petition to the court) each kind of harassing behavior that the offending person has done.

Aside from the above listed conduct, other conduct that constitutes harassment is: (1) striking, showing, kicking, or otherwise subjective another person to physical contact or attempting or threatening to do the same, (2) engaging in an act that would constitute abuse, (3) sexual assault, or (4) stalking. Only one of the five types of conduct must be met to file a harassment restraining order.

The process to obtain a harassment restraining order is typically two-fold: first, the individual will file a petition seeking a temporary restraining order. If the individual filing the restraining order has no money (or is “indigent”), he or she may ask the court to be excused for paying any filing fees. If the individual filing is not indigent, he or she still may ask the court in the initial petition to the court to order the offending person to pay the court and legal fees. Usually you will talk to a court commissioner about your petition.  The court commissioner can either grant you a temporary restraining order, which takes effect immediately, or can simply schedule your petition for a hearing.  Either way, you move on to step two, where the court issues a date for an injunction hearing.   The defending party must then be served notice with this date, usually by the sheriff’s department.

At the hearing, you must testify about your allegations.  You may call other witnesses as well.  Your accuser has the right to respond by testifying or calling witnesses as well.  If the court finds that there are grounds for a permanent restraining order, the standard relief awarded by the court is that the offending person be prohibited from engaging in the specific conduct that constituted harassment, including being prohibited from contacting, or even coming near, the petitioner.

Please note, Wisconsin harassment laws are intended to protect individuals who are being harassed by people outside of their home. If you are experiencing abuse within your home from a spouse or otherwise, the more appropriate order is domestic abuse restraining order. Domestic restraining orders, unlike harassment restraining orders, may carry the punishment of removing the offending person from the home.

For more information about how to obtain restraining orders, please see our website.

 

 

New Protections in Wisconsin for Domestic Violence Victims

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Governor Scott Walker signed several new bills into law this week which grant greater protection for domestic violence victims.

One law- called the TraJa Act- was named after Tracy Judd and her daughter Deja who were murdered in a domestic violence incident in Madison in 2009.   This law makes a third domestic violence conviction within 10 years a felony and gives judges the ability to impose harsher penalties on repeat domestic violence offenders.  It also expands the definition of a repeat offender as someone who commits domestic violence within 72 hours of a prior domestic violence arrest.  Another bill which was signed also allows judges to treat committing an act of domestic violence in front of a child as an aggravating factor during sentencing.

Gov. Walker also signed into law a measure which allows victims of domestic violence and stalking to keep a name change confidential.  Current law requires that public notice be published prior to a name change.

For more information about how to obtain restraining orders to protect against domestic violence, please see our website.