Should Protective Orders Require Background Checks?

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Person filling out a Criminal Background Check form.
Background checks can influence the result of a court hearing for a protective order.

Hopefully you never need a protective order. Yet, there are times when you may need a legal deterrent for someone who has threatened to harm you or your family. There are times that these orders have made a difference in a dire domestic situation. However, recent events have raised the question if the process of obtaining one could be better and if protective orders should require background checks.

Police arrested a Texas man for the murder of his ex-girlfriend and her boyfriend in March 2019. The ex-girlfriend attempted to obtain a restraining order because she feared that her ex-boyfriend could cause her harm. Her verbal testimony made mention of her ex’s criminal history, but the judge denied the protective order because he was unaware of the ex-boyfriend’s background.

The couple’s families are now gathering signatures to pressure lawmakers to require background checks for protective orders. They believe the judge would have ruled in her favor if the judge had seen her ex’s criminal record first in a background check.

Getting A Protective Order

Under current Texas law, to get a protective order, a court must find that family violence has occurred and is likely to happen again without an order. This puts the onus on the petitioner of the protective order to, essentially, prove their case.

Proving the need for a protective order isn’t impossible but may be added duress in a difficult situation For instance, Texas courts recommend gathering photos, medical records and relevant witnesses for evidence. They also ask you to provide proof of income for both yourself and the other party. Some of these materials may not be readily available.

Considering protective orders come at times of emotional duress, asking you to compile substantial evidence and a crop of witnesses could add further stress. A background check could have the potential to take some pressure off you and provide a judge with more information for your case.

In April 2019, the Texas legislature passed a law requiring a Protective Order Registry. This allows members of the justice community in the state of Texas to access the public record of issued protective orders but it is not clear if more steps will be taken for protective orders to require background checks.

The Difference Between Protective Orders and Restraining Orders

Both a restraining order and a protective order do not allow a person to be in proximity with or contact another person or their family, home, place of employment or the schools of their children.

Restraining Orders

A civil restraining order is a legal document that states that certain individuals cannot contact another individual. It is often filed as part of divorce cases or other court cases and states terms that either party must abide by to maintain proper conduct over the duration of the case.

The court may issue a temporary restraining order or a permanent restraining order. The temporary restraining order may be issued before a hearing where the judge will issue a permanent restraining order.

Restraining orders are considered a civil matter. Law enforcement may not have the authority to act on violations of a restraining order. A person and their attorney may have to return to civil court in a hearing to enforce violations of a restraining disorder.

A restraining order typically only lasts for a maximum of 2 years. However, the judge can find it appropriate to extend the timeframe of the order beyond the 2 years.

Protective Orders

Protective orders are often called orders of protection or protection orders. This is court-ordered protection that protects individuals against abuse and is primarily used in domestic violence cases.

Protection orders protect a person from threats, physical assault or violence, or harassment from another person. This order may even cover a person’s family or household members. It may contain information such as how long the order will be enforceable and specific provisions that protect the victim from violence depending on their case.

The victim may not even need to appear at a hearing and a judge may not need an attorney to request a protection order to issue one if the court can find evidence of violence. In most cases, the court may award you a temporary protection order until you show up at a hearing. You can then formally ask the judge for a protection order.

Law enforcement officers can enforce protection orders and respond to incidents of domestic violence.

How Do You Get A Protective Order?

To get a protective order for a domestic violence case, you need to show that family violence has occurred. You might also have to prove it is highly likely that the violence may continue. Family violence includes violence by a person you are dating, intimate partners and same-sex partners.

For a protection order regarding stalking, sexual assault and human trafficking, you must show that the abuser committed these acts. You do not even need to be related to the abuser in any way to get this type of protection order.

In an incident of violence, call the police or a law enforcement officer. Prior police reports of violence will be strong evidence that increases your chances of getting a protective order.

Apply for a protective order right after an incident when the threat of immediate danger is high. Keep records of incidents like photos and threatening messages. It is still up for debate whether protective orders should require background checks so the more evidence you have, the better.

Your attorney would be able to provide you with more information on how to increase your chances of getting a protective order.

What Are The Consequences Of Having A Protection Order Against You?

Maybe you’re the one who has had a protection order or restraining order filed against you. The consequences can have a severe impact on your home, daily life, employment and in many other ways.

Once a restraining order or protective order is filed, you may even have to move out of your home immediately because of the requirement to remain a certain distance away from the person.

You will not be able to frequent any of the grocery stores, restaurants or other places that the other party may also visit. This can be disruptive to your daily life.

You may even lose contact with your children which can include phone or email communication. In other cases you may have your parenting time and contact limited.

If the order states that you are not allowed to carry weapons or firearms, you may not be able to continue your employment if your job requires it. If you work in close proximity to the other party, it can affect your employment.

Does A Protective Order Or Restraining Order Show Up On A Background Check?

If an employer runs a general criminal background check or search, restraining orders typically do not appear on records as these are a civil matter. If you are looking to rent an apartment, landlords may not see the restraining order on a general background check.

However, detailed criminal background checks done for security clearance will show the restraining order that has been issued against you.

There are also other instances when your civil restraining order can appear on a background check.

Protective Orders Or Restraining Orders Issued With Criminal Charges

A background check or search would show your criminal history and any criminal charges pending against you. The background check may include information about protective or restraining orders filed against you particularly in domestic violence cases.

If you do get arrested, your arrest will show on public record that anyone can see. This can affect your ability to rent an apartment, get high-level security clearance or find a job.

Violation Of Restraining Orders Or Protective orders

The violation of restraining orders or protective orders is a criminal matter and can lead to jail time. The criminal charges will appear on a criminal background check that many employers or landlords can see.

To avoid unintentionally violating protective or restraining orders, you may want to hire an attorney who will know how to read your order carefully and explain your rights.

Should You Hire An Attorney To Fight A Restraining Order Filed Against You?

A restraining order can have a significant impact on your life even if they do not appear on a background check. You will receive a notification of a court hearing when someone has filed a temporary restraining order against you. An attorney that you trust can help you prepare your case showing the restraining order is not necessary. They also ensure you contest the order in time as you often only have a limited amount of time to do so.

It can be a complicated process to fight a restraining order. It’s important to engage someone you trust so you know your rights.

Does A Protective Order Affect Employment?

A protection order or restraining order generally would not affect your ongoing employment as it is a civil law matter. They do not appear on general criminal background checks that many employers carry out. However, some employers continue background checks even on employees that companies have already hired.

Even if the restraining order or protection order does appear on your record, an employer hiring someone new for the job might only look for serious criminal charges without considering minor issues in a background check.

However, potential employers who require high-level clearance like the military or police can see more in-depth records. This might reveal information on the record of your restraining order or protection order. These employers also perform very strict criminal background checks which can affect your chances of getting a new job there.

Restraining orders might also prohibit you from carrying firearms or weapons. This can affect your job if your job requires you to do so, or prevent you from finding a new job that does. Employers in roles that require firearms might see this information when performing background checks.

Texas Rules For A Background Check

In some cases, you might have criminal charges related to a restraining order or protection order. In the state of Texas, many companies using a credit reporting agency can look at up to 7 years of records in a criminal background check. However, if you find a job that earns above $75,000 a year, state law allows your employer to look back at records from as early as the age of 18.

State law also allows some exceptions to the limit of 7 years for a background check depending on the industry. For example, for jobs related to delivery services or in-home services like plumbers, employers need to perform background checks that go up to twenty years for felony or ten years for misdemeanours. Companies can also perform a background check going back to the age of 18 in the insurance industry.

However, companies that perform their own background checks and not through a credit reporting agency can look back as far as they want to.

Will An Expired Restraining Order Show Up On Background Checks?

An expired restraining order can show up on an in-depth background check that the military or police officers typically perform.

You typically cannot have any existing records of restraining orders expunged. A restraining order is not a criminal record. The concept typically applies to criminal records where information pertaining to an arrest or criminal charge are permanently removed from your criminal history and no employer will know of the incident.

Will A Restraining Order Show Up On Law Enforcement Checks?

A temporary restraining order or permanent restraining order will appear on a background check run by law enforcement. They have access to these records. This information on record can include expired restraining orders.

Will Restraining Orders Appear On Background Checks For Firearms?

It will appear on a background check for firearms. These require a search with more in-depth access to your records. Restraining orders typically do not allow you to buy, have or carry a firearm while the restraining order is active. You will only be able to buy a new firearm once the restraining order is removed or expunged.

Filing a protection order or injunction can be a very challenging process, compounded by the fact that it is not clear whether protective orders should require background checks.

Fighting a protection order can be very difficult for someone who has been unfairly penalized.

If you need help filing a protection order or defending one, let the award-winning Family Law experts at Lynch + Associates help you prepare your legal case. We have years of experience in family law and can answer your questions.

Contact us today for a no-cost case review.

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