Conditions and Form
If You Want to Get Back Together but the Order Is Still in Effect
Some couples arrive in court in the midst of a heated argument and, months later, find themselves in a completely different situation. They have started talking again, want to give it another try, or are even considering living together. But in the midst of the reconciliation, something appears that does not depend on them: the restraining order is still in effect. Many people call “restraining order” both the precautionary measure issued at the start of the proceedings and the prohibition on approaching that is later imposed in the judgment. Legally, they are not the same, nor are there the same possibilities for reaching an agreement.
It is advisable to verify this before doing anything. The existence of a court resolution preventing approach or communication renders any private agreement between the couple null and void.
Can a Restraining Order Be Lifted? Direct Answer
Whenever there is a precautionary measure, the attorney involved may request its withdrawal in writing; it must be assessed by the Judge in the prior report of the prosecutor and always based on the condition of the victim’s protection —if it is ultimately withdrawn—. It does not exist in the agreed measure; it is mandatory.
But what does the court take into consideration? Primarily, a sense in relation to whether the protection agreed upon at the time should be maintained. The relationship between the parties may have changed, there may have been proceedings conducted that alter the initial sense, or time may have elapsed without new incidents. Nor does the request “paralyze” the order. Until the court resolves it, it remains in effect.
Living Together with an Active Restraining Order: The Risk That Is Not Seen
If the order remains in force, living together will always be a crime of violation. The same will apply to calls, messages, meetings, or approaches. Section 468 of the Penal Code sanctions non-compliance with certain types of penalties or precautionary measures and specifically punishes violations of specific orders prohibiting approach or communication.
The problem often arises because it is the protected person who seeks contact; they may call, send messages, or ask the other person to return home.
From the couple’s logic, it is difficult to understand that there is a problem if both parties accept it, but from the criminal law logic, the order remains an order and the person subject to it must comply. In this way, situations arise that surprise those unfamiliar with how the procedure works: the couple has reconciled and has been seeing each other for some time, but a police intervention or any other case reveals that they were in fact living together and the order was still in effect. As regards the adoption of a new proceeding, it may be a proceeding for violation. If, on the contrary, the couple wishes to resume cohabitation, it is just the opposite: delay in requesting that the measure be lifted and wait for the court to so decree.
Requirements for Requesting the Termination of the Measure
There is no single requirement or minimum time from which the judge must proceed to terminate a restraining order. The most important thing will be to argue precisely what has changed since it was adopted. Sometimes the basic fact will be the passage of months without incidents; in others, the weight will be the result of statements, reports, and the introduction of other proceedings. The position of the protected person is important, of course; but it is a conditioning factor that should be delimited and placed within that whole.
It may even happen that both agree to request the lifting and the court maintains the restraining order. If from the record it appreciates that the risk continues, the conformity of the parties does not impose a resolution to the contrary. And there is another question that must be proven from the outset. One thing is to discuss a provisional measure while the case is still being investigated. Another very different thing is to be before a final judgment that has imposed the prohibition as a penalty. The name may be the same —”restraining order”— but legally the scenario has already changed.
What If a Final Judgment Already Exists?
Once finality is reached, the order cannot be lifted. A prohibition on approaching contained in a final judgment no longer has the status of a precautionary measure; rather, it is a penalty. Articles 48 and 57 of the Penal Code regulate these prohibitions and their imposition in a judgment.
The Duration of a Restraining Order and When Its Lifting May Be Requested
The duration, once again, will depend on which order we are talking about. A precautionary measure is understood to remain in effect while the case is being processed and will be reviewed if the reasons that led the court to adopt it disappear or are modified. It is not necessary to wait until the case is concluded to request its lifting.
With the penalty, however, something different happens. The duration of the penalty is determined by the judgment itself and then by its execution. The specific date is the one that must be verified as reflected in the judicial document; it is not a good idea to calculate it from memory, counting months from the day of the trial, the complaint, or the day of the arrest. It may seem like a small difference, but it is not. Being mistaken by a few days can mean that an encounter that both people believe is permitted occurs while the prohibition was still in effect.
When the established moment arrives, the penalty ceases to have effect. There is no earlier moment that disappears because a period of time has elapsed, because the couple’s relationship has been reestablished, or because for a period of months no one has filed a complaint about the contacts. Regarding how, or rather before which body, the lifting is requested: if we are dealing with a precautionary measure, the petition is filed in the case itself before the court that adopted that resolution or before the one that is currently hearing the proceedings. The written submission must identify the case and the resolution that is intended to be revisited, but what will be most important in the submission will be to argue why the termination is requested: what has happened since the prohibition was established and what circumstances make it possible or allow one to maintain that it is no longer necessary to apply the prohibition. If the person under protection also agrees, that can also be stated.
And from this point on, not all cases follow the same path. The Court may request a report from the Public Prosecutor’s Office, take statements from the parties in peace, summon the protected person, or act based on what is already in the record.
Hence it would be complicated to speak reasonably of a closed time limit. One matter can be resolved quickly and another may give rise to further proceedings before the Judge’s decision. If there is already a final judgment, it will be necessary to work on the enforcement and study what specific execution can be carried out. One cannot simply submit a written document like the one we would use in a precautionary proceeding.
Does Having a Restraining Order Mean Having a Criminal Record?
A precautionary restraining order does not result in a criminal record. An investigation can last for months, maintain a restraining order in effect, and conclude the case, at a minimum, archived or with an acquittal, that is, the restraining order exists and one cannot become a person with a criminal record. It is another matter if the case ends with a final conviction, which does result in a criminal record and penalties prohibiting approach or another penalty. People also often confuse the end of the restraining order period with the criminal record. The fact that the period ends does not mean that the criminal record automatically disappears. The penalty has a completion date; the criminal record, on the other hand, is subject to a specific expungement regime.
Cases are different: consult at the office. Before requesting a revocation of a restraining order, one must see how the resolution from which that restraining order derives is. By verifying how the resolution is, one can know whether a precautionary measure has been issued that can be reviewed or whether it is a penalty issued in a final judgment. Then one must see the rest: under what assumptions it was agreed, how long it has been in effect, what has happened during that period, at what stage the case is, and what the current situation of the protected person is. Two cases that, at unusual speed, may seem identical can require very different actions when the matter is verified.
If you wish to have contact again and there is a restraining order in effect, we can verify the resolution and the status of the case to assess whether there are real grounds to request its revocation or modification and by what means it is done. Until then, the restraining order must be complied with.
