In Wisconsin, you can get a temporary restraining order (TRO) immediately if a judge finds reasonable grounds. After the temporary order is in place, an injunction hearing happens within 14 days to determine whether the restraining order is necessary. There are four main types: domestic abuse, child abuse, harassment, and individual at risk.
Getting a divorce can be stressful and full of many challenges, but when domestic abuse is a factor, it is especially important for individuals to understand their options. Knowing the process for obtaining restraining orders can help ensure physical safety during and following the divorce.
Wisconsin law recognizes several different types of restraining orders intended to provide protections for individuals in various circumstances ranging from domestic abuse to harassment.
The reasons for obtaining a restraining order can be many but among the most important are to ensure personal safety and integrity. An essential function of a restraining order is to protect individuals who may be subject to physical and emotional abuse from their abusers. An active restraining order can also afford victims the time and space from their abusers that may be used for obtaining resources like counseling/therapy, safe housing, and financial independence. Essentially, restraining orders can be a tool in helping victims break free from their abusive relationships.
Although a restraining order cannot absolutely ensure a violent abuser will stay away, it can provide serious consequences in the event of violations. Individuals who violate restraining orders could be charged with criminal acts and face incarceration. These consequences can act as a deterrent to abusers and afford victims the peace of mind as they distance themselves from abusive relationships.
In the event that an individual is being physically or emotionally harmed by their spouse and wishes to obtain a restraining order, the process begins with a petition filed with the court and served upon the alleged abuser.
The petition must contain facts identifying the parties and describing the actions of the abuser to demonstrate that they have or may engage in domestic abuse. Domestic abuse under Wisconsin law is defined as:
Restraining orders in Wisconsin are issued with a two part process. Upon the filing of a petition for a restraining order, the requesting party may request that the court enter a temporary restraining order (TRO). A TRO may be issued by the court without a hearing and is intended to stop the other person from contacting the requesting party until the time a hearing on the injunction can occur. A hearing usually happens within 14 days.
If the court does not grant a request for a temporary restraining order, an injunction hearing is scheduled. The petition must also be served upon the alleged abuser using a private process server or a local sheriff’s office.
An injunction hearing is the court hearing where a restraining order is discussed. Injunction hearings are a type of hearing where the court can order someone to or not to do something, such as ordering someone not to contact a specific person.
At the hearing, each party is given an opportunity to give testimony on their side of the story. Each party is also permitted to call additional witnesses and present relevant evidence. Injunction hearings are evidentiary in nature, so the court expects parties to follow basic rules of evidence when presenting their cases.
After both parties have completed their presentations, the court will state whether the requesting party has met their burden of proof or whether the injunction has been denied. Wisconsin law requires the court to indicate whether the evidence presented establishes reasonable grounds to believe that the alleged abuser has engaged in or may engage in domestic abuse. In making this decision, the court considers the potential danger to the requesting party and pattern of abuse. The court cannot base their decision solely on how long it has been since the last incident occurred nor how long it has been since the relationship ended.
If the court grants the injunction, the petitioner may request that it remain in place for any length of time up to a maximum of four years. In addition to the prohibition of contact, the court can order other relief within the injunction including ordering the alleged abuser to vacate a shared residence, the exchange of a shared pet, the transfer of the requesting party’s cell phone number and the surrender of firearms possessed by the alleged abuser.
Restraining orders can trigger the need for careful consideration of potential impact on issues within a pending divorce including legal custody, physical placement of minor children, and property division.
The presence of a restraining order that stops contact between parents can have lasting impact on how those parents interact. It is important to think both of your safety and the feasibility of co-parenting after the separation.
Wisconsin courts must presume that it is in the best interests of the child for parents to share joint custody, which is the right to have a say in making major decisions for the child. However, there are circumstances where a court is not required to order joint legal custody. Cases that involve domestic abuse may trigger the presumption that the parties will not be able to cooperate when making legal decisions and that joint legal custody is contrary to the best interest of the child. In these cases, the court may not award joint legal custody rights to the alleged abuser until a certified treatment program has been completed.
Within a pending divorce action, the judge or court commissioner may interpret the presence of an active restraining order as evidence of domestic abuse in evaluating legal custody and physical placement determinations. However, it is important to be prepared to establish the existence of domestic abuse with witness testimony and other evidence if the court should require it.
Although Wisconsin is a “No-Fault State” and the presence of a restraining order does not necessarily give preference to one party over the other in property division, there are some circumstances where a restraining order could affect access to property.
When a restraining order is entered, the court may order the alleged abuser to vacate a shared residence even when there would otherwise be a legal right to be present. Within divorces, this may mean that an alleged abuser is ordered to move out of the residence they own with their spouse. Family courts must also honor and uphold restraining orders and their provisions within the context of a divorce. That is, if a party has been ordered to vacate a shared residence because of a restraining order, the family court is unlikely to enter contradictory orders. A restraining order can also provide that certain property (including pets) should be exchanged.
Finally, Wisconsin law does permit the court to consider all factors deemed to be relevant when making final property division determinations.
Wisconsin law currently recognizes four different kinds of civil restraining orders within Chapter 813. They are:
Domestic abuse restraining orders (outlined in Wis. Stat. § 813.12) apply to circumstances where the party seeking protection shares or previously shared a close relationship with the other person. This can mean living together, being related, being in a dating relationship, or being married, sharing a child, and even being an adult caregiver.
Child abuse restraining orders (outlined in Wis. Stat. § 813.122) apply to circumstances where a child is the victim of abuse. A child abuse restraining order does not require a family relationship between the alleged abuse and the child victim. If a parent is committed of child abuse, they can be categorized as an unfit parent.
Child abuse in Wisconsin is defined as:
