📑 Stay Away/No Contact: When Restraining Orders Conflict with Pretrial and Probation Conditions

Domestic disputes often end up in district court.  And it’s very common for a district court judge to order the defendant in such cases to “stay away” and have “no contact” with the alleged victim.

Such an order can come in several forms.  In most cases these restrictions are imposed by a restraining order.  However, if criminal charges are brought against the defendant, such orders can be set as pretrial or probation conditions.

Typically, restraining orders are easier to modify or terminate.  This is because such orders are issued based on a petition by the alleged victim.  If he or she has a change of heart—which frequently occurs in domestic quarrels—a subsequent petition can be made at anytime to have the restraining order changed.  These petitions are given priority in district court and are often heard within a few days of being filed.

This isn’t the case with pretrial and probation conditions.  When the defendant is charged with crimes stemming from a domestic spat, it is the prosecutor—not the alleged victim—who asks the judge to impose the “stay away” and “no contact” restrictions.  If the defendant and the alleged victim want the restrictions removed, the prosecutor can, and often will, object.  If the judge sides with the prosecutor, the couple will have no choice but to remain separated until the court says otherwise.  And, unlike the prompt hearings provided to restraining order petitioners, criminal proceedings often move at a much slower pace.

To avoid having pretrial and probation conditions that conflict with the parties’ interest, the court, when making such orders, should simply require the defendant to “abide by the restraining order” (provided such an order is already in place).  By doing this, the pretrial and probation conditions can change automatically if/when the alleged victim chooses. 

How orders are worded is, of course, determined by the judge.  But whenever a restraining order is already in place, the defendant should almost always argue that pretrial and probation conditions mirror the terms of the restraining order.