Exploring the No-Contact Order
Author’s note: I’m very happy you’ve enjoyed this overview of the no-contact order but remember if you have a specific legal issue you need to contact a lawyer and make an appointment in your state! I am licensed to practice in Washington State only and can only offer legal advice to 1) clients, 2) in the State of Washington
The no-contact order is one of more damaging orders a court can put on a person. While nominally it protects the safety of what is known as the protected person, they can also wreak havoc on a living situation. Further, they can create new criminal charges for a restrained person, even felonies. This week’s topic goes into how these orders come about, and the best practices for both the restrained and protected parties.
How is a no-contact order created?
A no-contact order is an order signed by a judge. As I explain below, it can be requested by anyone, but only a judge can order one.
The first method is the requested order. A person goes to a court and fills out a form requesting the judge issue a 14-day protection order. The form of course lists the reasons why someone should be restrained. Importantly though, that person is not required to be present at the petitioner-requesting stage. This is a rare exception to the rule requiring all parties be present before a judge will take action on a matter. In other words, a person can request a temporary restraining order ex parte.
If the request is in anyway rational (e.g. does not involve aliens) the judge will probably issue the restraining order. But the court requires the order be served, or delivered, to the restrained person. And there’s a couple reasons for that: 1) the order is ineffective if the restrained person doesn’t know about it, and 2) at the end of the 14 days the petitioner can request the temporary restraining order be converted into a permanent one.
This process involves a hearing, and cannot be done ex parte. The actual hearing to convert a temporary restraining order into a permanent one is complex and beyond the scope of this post, but in essence the judge makes determinations on how systematic someone’s offensive contact is. The “permanent” ones generally last two years.
The second way a no-contact order is created is when a person is arrested for a crime against another person. Examples of this include Robbery, Domestic Violence Assault, Rape, etc.. It works like this:
The arrested person is brought before a judge and pre-trial release conditions are imposed. This sometimes includes bail, but always involves a no-contact order. While the judge technically does not have to order one for these cases, the prosecution will always request it and the judge will always order it. No judge wants to be in the papers as the one judge that did not order the domestic abuser to stay away from the victim, even if it turns out the charges are wholly untrue. In other words, they want to play it safe while the case winds its way through the system.
Clients will often ask me to ask the court not to impose the order, but this never happens. Sometimes the alleged victim (A/V) will be in court and they will ask the court not to impose the order but even so this almost never happens. Why would a judge impose an order that neither the restrained person nor protected person wants? Some attorneys say it’s a paternalistic approach, that the A/V is too abused to know what they want, but I think it’s half safety and half political, as I explained above. And again, to the court’s mind, if the allegations are unsubstantiated, no one is worse for wear in the long term (not always true).
This post-arrest, pre-trial order is where a lot of people get screwed up, but I’ll get into that in a bit. There is one more way a no-contact order is created.
As a part of sentencing to a crime against a person, a judge will almost always order no-contact for a good length of time, generally two years, which is frequently the maximum that can be ordered.
Attorneys have a tiny, tiny amount of play with pre-conviction orders but after someone is found guilty? Forget about it. The issue of the protected person objecting to the order doesn’t usually come into play here because if the prosecution doesn’t have an A/V on board, the charges may be dismissed or the defendant may plead to a lesser charge. Or the court may not order one if the person goes down so hard that the no-contact order is superfluous since the person is in prison.
Penalties for violating no-contact orders
Once the order is in place, a copy gets filed with all the law enforcement agencies in the state. That means if you’re in a place where you’re IDed, for example driving, make sure you are not the subject of a no-contact order protecting your passengers.
Getting charge with violating a no-contact order (VNCO) is very, very bad. There are numerous reasons for this:
It’s a new charge.
Regardless how the order is created, the person does not want to deal with a new criminal charge. Even if the underlying charges are dismissed, or overturned on appeal, or the temporary order would have expired without a problem, this new VNCO needs to be dealt with. The first two VNCOs are gross misdemeanors with potential sentences of a year in jail and $5,000 fines. Future VNCOs can be charges as felonies.
It’s a charge that tells the court “I don’t follow the court’s orders.”
If there is one thing judges hate more than anything else, it’s people not following the court’s orders. Judges consider ever order, decision, and ruling to be reasoned and fair. A willful disregard of that order is a personal affront to the judge and the court’s noble authority.
What does this mean for you? It means really high bail while the charge is pending, and probably a more severe sentence if or when the case resolves. A VNCO is a special kind of charge that tells the court to explicitly not trust you for future dealings.
How to handle a no-contact order
Short answer: abide by it. If you see the protected person, turn around. There’s no violation for accidently being around someone, just intending to communicate with them or staying around them. No waves, no talk. Leave. If you are somewhere legitimate and the protected person comes in, you leave. If it sounds unfair, it kind of is. But it’s not a two-way street and you are the restrained person. Wherever they go, be somewhere else.
A big, big way people get jammed up is impersonal contact. Phone calls, text messages, facebook posts, etc. All these constitute contact, and hence all of these are forbidden. These are actually worse because they create a definite record. An attorney has a little bit of game if people happen to be in the same room. If one person sends another a text message saying “I wish you hadn’t gotten a no-contact order,” that’s going to be a tough one to fight.
As I said, the big problem area is that post-arrest, pre-conviction space. A no-contact order between two people who live together or have kids together can be highly disruptive to everyone’s life. And as I said, even if none of the parties want it, the judge will probably order it.
This effectively means the restrained person needs to find a new place to live for weeks or months. If requested, the court will authorize one or two civil standbys, which permit the protected person to get a police escort to collect their clothing and effects. After that though, radio silence.
Related to this is when the protected person invites the restrained person back into the house. I’ve seen this before and it doesn’t end well. Just as the judge is the only person who can order a no-contact order, the judge is the only person who cancel it (unless it expires of course). What this means is that even if the restrained person is invited or induced to contact the protected person, that is not a defense. Charges can, and often will, still be brought.
So my long answer is that while it may suck and may be disruptive and may even require financial expenditure, the consequences of violating it are worse. I am occasionally asked how the prosecution would even find out about illicit contact, and I tell them flat out “You would be surprised. Do not risk it.” Some listen and some don’t, and sometimes they do get away with it, but talk about playing with fire.
I’m frequently asked if they can be removed or lifted, and the answer is yes. Sometimes. First for the civil orders, they naturally expire pretty quickly. The petitioner can ask for permanent ones, but as I indicated, they are far harder to get than the quickie, temporary ones.
For pre-conviction cases, there is a method of having them lifted. The process varies court by court, but generally each venue has what are called “lift courts.” The protected person comes in, makes their pitch, and asks for the order to be lifted. The court certainly does not have to do so, but sometimes they will. Factors include the severity of the original charged conduct, how long the order has been in place with no violation, encumbrances suffered by the protected and restrained persons due to the order, and so on. Needless to say, if the charges are dismissed the no-contact orders are dismissed with them. It happens.
No-contact orders are potential mine fields. Even if the underlying cause goes away, they can create serious headaches for people while they are in effect. I give my clients the same advice as I’m giving here: while they are in place, scrupulously avoid all direct and indirect contact with the protected person. Like so many other things, they are not fun but ignoring it is worse.