Restraining Orders:
A restraining order or protective order is a legal order issued by a state court which requires one person to stop harming another. In Missouri, orders of protection are available due to domestic violence and due to stalking or sexual assault.
Overview of Civil vs. Criminal Law:
Some restraining orders are issued in criminal court and some are issued in civil court.
A quick overview of the legal system:
One thing that some people may find confusing about the legal system is the difference between civil cases and criminal cases. In domestic violence situations, there may be both civil and criminal cases occurring at the same time as a result of the same violent act. You may want to pursue both civil and criminal actions for maximum protection. The major differences have to do with who takes the case to court, the legal reason for the case, and the possible penalties associated with the case.
Civil Law
In a civil domestic violence action, you are asking the court to protect you from the person abusing you. You are not asking the court to send that person to jail for committing a crime. However, if the abuser violates the civil court order, s/he may be sent to jail for the violation. In a civil case, you are the person bringing the case against the abuser and (in most circumstances), you have the right to withdraw (drop) the case if you want to. The orders of protection that we refer to in this section are under the civil law system.
Criminal Law
The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, theft, etc. A criminal complaint involves the abuser being charged with a crime. In a criminal case, the prosecutor (also called the district attorney) is the one who has control over whether the case against the abuser continues or not and a judge or jury decide if the abuser is guilty of the crime committed. It is the county/state who has brought the case against the abuser, not the victim. It is possible that if you do not want the case to continue (if you do not want to “press charges”), the prosecutor might decide to drop the criminal charges but this is not necessarily true. The prosecutor can also continue to prosecute the abuser against your wishes and could even issue a subpoena (a court order) to force you to testify at the trial.
Orders of Protection due to Domestic Violence:
An order of protection due to domestic violence is a civil order that provides protection from harm by a family or household member.
What is the legal definition of domestic violence in Missouri?:
This section defines domestic violence for the purposes of getting an order of protection.
For the purpose of filing for an order of protection, domestic violence is when a family or household member commits stalking or commits, attempts to commit, or threatens to commit abuse, which is defined as any of the following acts:
◇ Assault: purposely placing or attempting to place you in fear of physical harm;
◇ Battery: purposely causing physical harm to you with or without a deadly weapon;
◇ Coercion: using force or a threat of force to make you do something or to stop you from doing something;
◇ Harassment: committing acts (more than once) that causes you or your child alarm or substantial emotional distress and serves no legitimate purpose. For example:• Following you or your child in a public place;
◇ Peering in the window or lingering outside your home;
◇ Sexual assault: causing or attempting to cause you to engage involuntarily in any sexual act by force, threat of force, duress (coercion/pressure), or without your consent;
◇ Unlawful imprisonment: holding, confining, detaining or abducting you against your will.
Stalking is defined as when someone purposely acts in a way that reasonably causes you alarm (fear of danger of physical harm) and that serves no legitimate purpose – the actions must occur two or more times. Examples of stalking behavior are repeatedly following you or making unwanted communication / contact with you.
MO ST §§ 455.010(5); 455.020(1)
MO ST § 455.010(1)
MO ST § 455.010(14)
What types of orders of protection are there? How long do they last?:
There are two types of orders:
1- Ex parte orders of protection – Ex parte is Latin for “from one side.” A judge can grant you an ex parte order if you prove there is “good cause” to do so. “Good cause” can be when the judge believes there is an immediate and present danger of abuse to you. A judge may grant you the order based solely on your petition and testimony, without holding a hearing. Ex parte orders may be granted without the abuser’s prior knowledge and without his/her presence in court.
An ex parte order generally will be valid until your court hearing for a full order of protection, which usually takes place within 15 days.
If you ask for an ex parte order but the judge doesn’t give you one, you may get a “Notice of Hearing” instead. Although this is not an order protecting you, it does mean you have a date and time for a hearing, where the judge will decide whether or not to grant you a full order of protection. To get a full order of protection, you will need to prove your allegations of domestic violence to the judge.
Note: If you desire, you can receive a notification when the ex parte order is served on the abuser. Ask the clerk for information on how to get this notification.
1- Full orders of protection – A full order of protection can be issued only after a court hearing in which you and the abuser both have a chance to tell your sides of the story. If you prove to the judge that you were the victim of domestic violence, stalking or sexual assault, you can get an order of protection that will last for a period of time between 180 days and one year.2 Full orders may be extended for a longer period of time. For more information, see How do I extend, change or dismiss an order of protection?
MO ST § 455.035(1)
See MO ST § 455.040(1)
MO ST § 455.038
How can an order of protection due to domestic violence help me?:
An ex parte order of protection can do the following:
◇ Forbid the abuser from committing or threatening to commit domestic violence, sexual assault, stalking, molesting you or disturbing your peace;
◇ Forbid the abuser from entering your home when it is:• Jointly owned, leased or rented or jointly occupied by you and the abuser; or
◇ Owned, leased, rented or occupied by you individually; or
◇ Jointly owned, leased or rented by you and someone else (not the abuser); or
◇ Jointly occupied by you and someone else (not the abuser) as long as the abuser does not have a property interest in the home;
◇ Forbid the abuser from communicating with you in any manner or through any medium (i.e., phone, computer, etc.);
◇ Make a temporary order of custody of your minor children where appropriate; and/or
◇ Include such other terms as the judge reasonably believes are necessary to ensure your safety.
A full order of protection (after notice to the abuser and a hearing) can:
◇ Include all of the terms listed above; AND
◇ Order any of the following (as long as your petition has facts/allegations relating to these topics and your petition specifically asks for them):• Award custody of any minor child born to or adopted by the parties when:• the court has jurisdiction (power) over such child;
◇ no prior order regarding custody is pending or has been made; and
◇ the best interests of the child require that a custody order be issued;
◇ Establish a visitation schedule that is in the best interests of the child;
◇ Order the abuser to pay child support;
◇ Order the abuser to pay spousal support (maintenance) for up to 180 days if you are legally married;
◇ If you are married to or have children together, the judge can order the abuser to make rent or mortgage payments on the home in which you are living or on a different home (rather than the one you lived in with the abuser) if you choose;
◇ Give you temporary possession of personal property, such as cars, checkbooks, keys, and other personal items;
◇ Prohibit the abuser from transferring, selling or getting rid of property mutually owned or leased by you and the abuser;
◇ Order the abuser to participate in batterers’ counseling or drug treatment;
◇ Order the abuser to pay a reasonable fee for housing and other services that are/were provided to you by a domestic violence shelter;
◇ Order the abuser to pay court costs;
◇ Order the abuser to pay the cost of medical treatment and services that are/were provided to you as a result of injuries due to domestic violence committed by the abuser;
◇ Order the abuser to pay your attorney’s fees; and/or
◇ Direct a wireless service provider to transfer the rights to, and billing responsibility for, any wireless service (cell phone) number(s) that you or any minor children in your care use, if you are not already the account holder.
MO ST § 455.045
MO ST § 455.050(1)
MO ST § 455.050(4)
MO ST § 455.050(8)
MO ST § 455.050(3)
MO ST § 455.075
MO ST §§ 455.050(9)(1); 455.523(2)(9)
How will the judge decide custody and visitation in a full order of protection?:
If the court makes a custody decision in a hearing for a full order of protection, the judge should assume that it is in the child’s best interests for the non-abusive parent to get custody. If there is evidence that both parents have been abusive to each other, the judge will not make this assumption. Instead, the judge can appoint a guardian ad litem or a court-appointed special advocate to represent the child and will consider all other factors that are normally considered in a custody case.
When deciding visitation in a hearing for a full order of protection, the judge should give the non-custodial parent visitation rights unless the judge believes that one of the following is true:
◇ visitation would endanger the child’s physical health;
◇ visitation would negatively affect the child’s emotional development;
◇ visitation would otherwise conflict with the best interests of the child; or
◇ that it is not possible to have visitation and still be able to protect the custodial parent from further abuse.
The court may appoint a guardian ad litem or court-appointed special advocate to represent the minor child whenever the custodial parent alleges that visitation with the noncustodial parent will damage the minor child.
Note: An order of protection cannot change the custody of children when an action for dissolution of marriage (divorce) has been filed or when a judge has previously awarded custody to a parent.
MO ST § 455.050(5)
MO ST § 455.050(6)
MO ST § 455.060(6)
In which county can I file for an order of protection?:
You can file a petition in the county where you live, in the county where the domestic violence took place, or in any county where the defendant can be served with the petition. Note: The order of protection can be issued in a Missouri court even if you are in Missouri on a temporary basis as long as the domestic violence has occurred, has been attempted, or has been threatened within the state of Missouri. If there was additional domestic violence that happened outside of Missouri, you can include these incidents as a way to demonstrate your need for protection.
MO ST § 455.015
MO ST § 455.032
How much does it cost to get an order of protection? Do I need a lawyer?:
There are no fees to you for filing for an order of protection due to domestic violence. After a hearing for a full order of protection, the judge could order the respondent (the abuser) to pay court costs. Also, the judge could order the abuser to pay your attorney’s fees.
You do not need an attorney to file for an order of protection, but it may be better to have one if you can, especially if you think the abuser will have one.
In many places, local domestic violence or sexual assault programs and/or clerks’ offices can help you file for an order of protection. You will find a list of places that might be able to help you on the MO Advocates and Shelters page. You will find contact info for court clerks at the MO Courthouse Locations page.
MO ST § 455.027
MO ST § 455.050(3)
MO ST § 455.075
Can I get an order of protection when the courthouse is closed?:
Yes. When the circuit court is unavailable after business hours or on holidays or weekends, you can file a petition for an order of protection (or a motion for a hearing on a violation of any order of protection) before any available court in the city or county having jurisdiction to hear the petition and an ex parte order of protection can be issued. During hours when the circuit court is closed, a clerk and judge must be on call to process petitions in cases of emergency. In St. Louis City and County, the filing is done at a police station when the courthouse is closed. In some of the outlying counties, it is done by the Sheriff’s Dept. Go to MO Sheriff Departments to find the one in your county.
MO ST § 455.030(1)
Who can get an order of protection?
Can I get an order of protection?
You could qualify for an order of protection due to domestic violence if the abuser has committed domestic violence, as defined by law, and the abuser is a family or household member, which means:
◇ a spouse/ ex-spouse;
◇ someone you live/d with;
◇ anyone related to you by blood or marriage;
◇ someone you are dating or have dated;
◇ someone who you have a child in common with (even if you never lived together and never married).
If the person abusing you does not fall into one of these categories, you may be able to get an order of protection against him/her if s/he is stalking you or has sexually assaulted you. For an order of protection due to stalking or sexual assault, you can have any relationship with the offender.
Note: The order of protection can be issued in a Missouri court even if you are in Missouri on a temporary basis as long as the domestic violence has occurred, has been attempted, or has been threatened within the state of Missouri. If there was additional domestic violence that happened outside of Missouri, you can include these incidents as a way to demonstrate your need for protection.
1 MO ST § 455.010(7)
2 MO ST § 455.010(11)
3 MO ST § 455.032
Can I get an order of protection against a minor?
Yes. Anyone (an adult or a minor) can get an order of protection against a minor, which is someone under age 17 (in Missouri, age 17 is considered to be an adult). An ex parte order of protection (or an order of protection for a child) can be issued against a minor in circuit court and then the case will be transferred to juvenile court for the hearing on a full order of protection. The judge will appoint a guardian ad litem for any minor respondent who is not represented by a parent or guardian.
Note: When serving an order against a minor, his/her custodial parent, guardian or guardian ad litem must be served (unless the minor is emancipated). The court papers will require that the parent/guardian appear in court and bring the minor-respondent to court at the time and place stated.
1 MO ST § 455.010(3)
2 MO ST §§ 455.035(3); 455.513(4)
3 MO ST § 455.035(3)
4 MO ST § 455.035(2)
Can a minor get an order of protection?
Yes, but the minor child cannot file on his/her own. The minor child’s parent, guardian, guardian ad litem, court-appointed special advocate or juvenile officer would have to file a petition for a child order of protection (also called an “order of protection for a child”) on the minor child’s behalf. An order of protection for a child may be available to a child who has been subject to domestic violence by a present or former household member or for a child who has been stalked or sexually assaulted.
Note: Missouri law defines a “child” as someone who is under 17 and an “adult” as someone age 17 and older (or a minor who is emancipated).1 However, the information about child orders of protection on the Missouri Courts website says that the order applies to anyone who is 17 or younger. If a 17-year old wants to file as for an order of protection on his/her own (without a parent or guardian), s/he may want to bring a copy of the law that defines an adult as someone 17 or older.
A minor may also be included on his/her parent’s petition for order of protection if the parent is a victim of domestic violence, sexual assault or stalking and the minor is a child of the petitioner and respondent.
Note: There are slight variations in the laws between orders of protection for a child mentioned in this question and the orders of protection (for adults) that are explained throughout this entire section of WomensLaw.org. To read the laws that specifically address orders of protection for a child, you can go to our MO Statutes page and scroll down to the section called “Child Protection Orders,” beginning with section 455.500.
1 See MO ST § 455.010(2)
2 MO ST § 455.503(2)
3 MO ST § 455.505(1)
What if I don’t qualify for an order of protection?
If you don’t qualify for an order of protection due to domestic violence, you might qualify for an order of protection due to stalking or sexual assault. Go to Orders of Protection due to Stalking or Sexual Assault for more information.
Also, you might still be able to pursue criminal charges against the offender. Assault, stalking, and harassment can be against the law — no matter who the abuser is. If one of these crimes is being committed against you, you may want to report it to law enforcement. If charges are pressed against the abuser, a judge may be able to order him/her to stay away from you. You can also visit our Safety Tips page for ways to increase your safety.
Orders of protection also may not cover many types of emotional or mental abuse. If you’re being mentally or emotionally abused, you may want to contact a domestic violence organization in your area. They may be able to help you figure out your options and offer you support. To find a shelter or an advocate at a local program, please visit the MO Advocates and Shelters page under the Places that Help tab at the top of this page.
After the hearing:
Can the abuser have a gun?
Once you get a protection order, there may be laws that prohibit the respondent from having a gun in his/her possession. There are a few places where you can find this information:
◇ first, read the questions on this page to see if judges in Missouri have to power to remove guns as part of a temporary or final order;
◇ second, go to our State Gun Laws section to read about your state’s specific gun-related laws; and
◇ third you can read our Federal Gun Laws section to understand the federal laws that apply to all states.
You can read more about keeping an abuser from accessing guns on the National Domestic Violence and Firearms Resource Center’s website.
What should I do when I leave the courthouse?
Here are some possible ideas of things you may want to do when preparing to leave the courthouse. Not all will apply to everyone. Please consider which ones you think may help you.
◇ Review the order before you leave the courthouse. If something is wrong or missing, ask the clerk how to correct the order before you leave.
◇ Make several copies of the order as soon as possible.
◇ Keep a copy of the order with you at all times.
◇ Leave copies of the order at your workplace, at your home, at the children’s school or daycare, in your car, with a sympathetic neighbor, and so on.
◇ Give a copy to the security guard or person at the front desk where you live and/or work along with a picture of the abuser.
◇ Give a copy of the order to anyone who is named in, and protected by, the order.
◇ If the court has not given you an extra copy for your local law enforcement agency, you may want to take one of your extra copies and deliver it to them.
◇ You may wish to consider changing your locks and your phone number.
Ongoing safety planning is important after receiving the order. People can do a number of things to increase their safety during violent incidents, when preparing to leave an abusive relationship, and when they are at home, work, and school. Many batterers obey orders for protection, but some do not. It is important to build on the things you have already been doing to keep yourself safe. For more information please visit the Safety Tips page. Advocates at local domestic violence programs can assist you in designing a safety plan and can provide other forms of support.
What can I do if the abuser violates the order?
You can call the police or sheriff to report the violation, even if you think it is a minor violation. When a law enforcement officer believes that the abuser has committed an act of domestic violence, sexual assault or stalking in violation of an order of protection, the officer is supposed to arrest the abuser even if the officer didn’t witness the incident. Also, if you get awarded custody of your children as part of your order of protection, and the abuser does not return the children to you, the police are supposed to arrest the abuser and give you your children.
If the abuser violates any of the following terms of an ex parte or full order of protection, it can be a class A misdemeanor (or, if the abuser has previously pleaded/been found guilty of a prior violation within the past 5 years, it can be a class D felony):
◇ s/he commits domestic violence, sexual assault or stalking;
◇ s/he violates a term regarding child custody;
◇ s/he initiates communication with you;
◇ s/he enters your home, place of employment or school; or
◇ s/he comes within a certain distance of you or your child.
It is generally a good idea to write down the name of the responding officer(s) and their badge numbers in case you want to follow up on your case. Note: You do not need a certified copy of your order to show to the police; any copy of the order is enough.
Another option you may have is to file a motion for civil contempt and/or for criminal contempt in court. This can be difficult to do on your own, so it may be a good idea to try to get a lawyer to help you if you can. Some courts have fill-in-the-blank motions, which you can use if you do not have an attorney. Although there is a filing fee for these motions, it can be waived if you fill out another form (called a motion to file in forma pauperis) explaining why you can’t pay.
A motion for civil contempt generally applies when the abuser has not violated the order of protection — not by abusing you, but rather s/he has not followed one of the other parts of the order (which generally are not enforced by the police). For example, s/he didn’t pay the child support that s/he was ordered to pay. The abuser will be served with the motion and have a chance to appear in court at a hearing. In the hearing, you will present your evidence saying how the abuser violated the order and s/he will get a chance to respond. If the judge finds that s/he did violate the order, s/he can be held in contempt and punished until s/he follows the order.
A person may file a motion for criminal contempt in cases where the abuser is criminally violating the order of protection, by continuing to abuse you, for example. The process is generally the same as for the motion for civil contempt however it may be more complicated to do on your own. For legal help, go to our MO Finding a Lawyer page.
1 MO ST § 455.085(2)
2 MO ST § 455.085(5)
3 MO ST § 455.085(7),(8)
4 MO ST § 455.083
How do I extend, change or dismiss an order of protection?
Extending an order
Your full order of protection can include a term that allows it to automatically renew unless the abuser files an objection/requests a hearing within thirty days before the expiration of the order. If the abuser does file an objection/request a hearing, you are supposed to be personally served with these papers at least 3 days before the hearing date.
If your order does not allow for an automatic renewal, you can file a motion to renew your order. After holding a hearing, the judge can renew it for between 180 days and 1 year. There does not have to be a new incident of domestic violence, sexual assault or stalking to renew your order. In order to avoid any lapse in your protection, it is usually a good idea to file for your extension at least two weeks before your first order of protection expires. In the event that your first full order expires before you are able to schedule a hearing on extending it, the court may grant you an ex parte order to protect you until your next hearing.
Changing an order
To modify (change) an order, either party can file a motion (legal papers) to modify the order. You would have to include an affidavit (sworn statement) that explains that there has been a change in circumstances that call’s for the modification you are requesting. The judge would hold a hearing to decide whether or not to grant the modification.
Dismissing an order
If you want to dismiss/terminate your order, you can file a motion to dismiss. The judge has the option to hold a hearing where s/he can question you or others to decide whether or not to you are voluntarily asking to dismiss it (i.e., that you are not being pressured into it by the abuser).
1 MO ST § 455.040(4)
2 MO ST § 455.040(1)
3 MO ST § 455.060(1)
4 MO ST § 455.060(5)
What happens if I move?
Your order of protection is valid everywhere in the state. Additionally, federal law provides what is called “full faith and credit,” which means that once you have a criminal or civil protection order, it follows you wherever you go, including U.S. Territories and tribal lands. Different states have different rules for enforcing out-of-state protection orders. You can find out about your state’s policies by contacting a domestic violence program, the clerk of courts, or the prosecutor in your area. You may also call the National Center on Full Faith and Credit and Protection Orders (1-800-903-0111) for information on enforcing your order out of state. We have general information about enforcing your order in another state on our Moving to Another State with an Order of Protection page.
You may want to call the clerk’s office at the court where you originally received the order to tell them your new address so that they can contact you if necessary. This may be especially important if your order allows for an automatic renewal so that you can receive the notice of the hearing date if the abuser files an objection/ request for a hearing to the order being automatically renewed.
Missouri has a process for registering orders issued by another state, tribe, territory, or possession of the U.S. You can register your order in MO although it is not required – a certified foreign order of protection can still be enforced in MO. To register an order, you must file a certified copy of the foreign order and an affidavit or sworn statement that the copy is a true and accurate copy and has not been altered by the circuit court having jurisdiction. You must notify the court if the order terminates prior to the date on the order. There is no fee for filing the order.
1 MO ST § 455.067(2)-(4)