New Hampshire: Restraining Orders
Temporary and Final 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. A WMC client must show ‘abuse’ by a preponderance of the evidence.” “Abuse” is defined as having two elements: (1) commission or attempted commission of one or more of several criminal acts; and (2) a finding that such misconduct “constitute[s] a credible present threat to the petitioner's safety.”1
There are three types of restraining orders:
1) Temporary (emergency) ex parte protective orders issued via telephone. If one is in immediate danger of domestic violence and the court is closed, one may get an emergency order by going or calling the nearest police department. The judge may give an emergency order over the phone or via fax if s/he believes you are in imminent danger. An order over the phone will last until the close of the next business day that the court is open. For the protection to remain in effect, one will have to go to the circuit court where they live before the close of the next business day to request a protective order that will last longer. See N.H. Rev. Stat. § 173-B:4(I).
2) Temporary ex parte protective orders issued in court. If judge believes there is an immediate/present danger of abuse, the judge can order a temporary ex parte order to protect until a full hearing on the protective order. The defendant has the right to file a written request with the clerk to request a hearing to fight against the order, which would be held within 3-5 business days. This would then produce a final protective order hearing. If the defendant does not request this immediate hearing, the hearing for the final order will be held within 30 days of when you filed the petition or within 10 days of when the defendant is served with the papers, whichever is later. See N.H. Rev. Stat. § 173-B:3(VII)(a).
3) Final Protective Orders. A final protective order can be issued only after a court hearing where the parties have the right to be present and produce evidence. A final order will last up to one year and can be extended. See N.H. Rev. Stat. § 173-B:5(VI)
Text of Statute(s)
Achille v. Achille, 167 N.H. 706, 117 A.3d 1144 (2015)
- Procedural Posture: wife petitioned for domestic violence protective order, which was granted. Husband appealed.
- Law: Domestic violence protective order.
- Facts: Three days after the husband brought a gun to his wife's residence and threatened to use it, grabbed her by her hair, threw her against counter, choked her, slammed door on her, and pushed her to floor, the wife sough a domestic violence protective order.
- Outcome: To obtain a domestic violence protective order, the petitioner must show abuse by a preponderance of the evidence. The threat posed by conduct to a petitioner's safety must be ongoing, and incidents that are too distant in time and non-specific cannot support a finding of abuse. On a petition for a domestic violence protective order, the petitioner must show more than a generalized fear for personal safety based upon past physical violence and more recent non-violent harassment to support a finding that a credible threat to her safety exists. The court found that evidence supported finding that husband presented ongoing credible threat of harm to wife as basis for issuing domestic violence protective order.