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BEYOND THE PAPERWORK: PRACTICAL ADVICE FOR OBTAINING A PROTECTION ORDER

November 15th, 2013 · No Comments

When you seek an order of protection, you should be fully aware of the gravity of the request and its legal consequences.  An order of protection (or restraining order, protection order, or no-contact order, depending the jurisdiction and relationship of the parties) is a court-issued document that prohibits an individual (the respondent/defendant) from directly contacting the petitioner/victim.  Protection orders are frequently filed to prevent acts or threats of domestic violence, stalking, and harassment, although they can be used to bar other types of abusive or menacing behavior.

A protection order must be issued by a court.   A petitioner may seek a temporary order first, typically an emergency or ex parte proceeding (granted on the request of, and done for, one party).   Only the petitioner is present and the judge will either allow or deny the request order.   If all or part of the order is allowed, a subsequent hearing is scheduled (usually within two weeks) to determine if the order should be continued.  The respondent/defendant can present evidence and witnesses at the subsequent hearing, but must abide by the outstanding order of protection until the second proceeding.  Additional hearings may ensue to determine the scope and permanence of the proscribed contact between the parties.  Violation of the terms of these orders can result in mandatory counseling, prosecution, fines, forfeiture of firearms, and incarceration for the defendant.  Violation of the terms by the petitioner can result in nullification of the order.

Many resources are available to assist you with a protection order in your local community or are available online.  This blog site published an article on Orders of Protection in July 2012, directing you to valuable information in your jurisdiction on CourtReference.  Simply select your state, county, and the ”Self Help” menu option to find links to protection order forms, instructions, and domestic violence prevention programs.

The intention of this article, however, is to provide some practical (and tactical) advice to individuals seeking orders of protection.   I have assisted in both the pursuit and defense of such orders and would like to share some insight  gained through these experiences.  Next month I will address some strategies for defending against an order of protection.

1. Safety First

As a petitioner and victim, minimize the threat or harmful behavior by physically removing yourself not only from the defendant but from any circumstances and environments that can trigger a dangerous encounter.  Have a safety plan and exit strategy ready and share with trusted friends and family members for support and intervention.

2.  Seek Support and Counsel

Contact local violence prevention groups in your area as well as law enforcement agencies.  Notify family and friends of  any imminent danger or threatening behavior and seek immediate assistance.

2.  File a Temporary Restraining Order Request

Obtain the proper paperwork for your circumstances.  Are you filing a temporary or permanent order in the correct county, state, or tribal court?  Particularly if you are proceeding pro se (without legal representation), seek court staff guidance. They can direct you to the appropriate forms, provide them in other languages (or arrange for translation services if necessary), and assist you with their completion.  Many courts offer family or abuse prevention advocates to guide you through the process.  As you complete your paperwork, explain as clearly as possible why you need the order.  You must provide examples of threatening or abusive behavior to substantiate a no-contact order.   If you can provide evidence to support your claims (medical records, witness testimony, arrest records, etc.) your temporary order will likely be granted.   Do not embellish facts to make your case more compelling.  False statements or exaggerated claims will negatively impact your credibility and undermine the success of your petition.  Be as truthful and accurate as you can with details, dates, and descriptions.

Then, review ALL your paperwork carefully (and if possible ask someone else to edit/review).  Make sure you have the most current forms and fee schedule, and pay close attention to the number of copies required for delivery to the court and the respondent.  Review the process for serving papers on the respondent and make sure you are in compliance with all procedures (completed petition, notice deadlines met, proof of service to the court, etc.)

3.  If a Temporary Order is Granted

Both parties must abide by the terms of the temporary order.  As the petitioner, do not initiate any contact, even if you feel the threat is diminished or the terms of the order too harsh. Do not engage in any form of communication with the restrained party, or use friends and family to communicate as ”conduits.”  Keep duplicate copies of all court documents and a copy of the temporary order with you at all times.   Begin preparation for the next hearing to substantiate your request for a more permanent order of protection.

4. Seeking a Permanent Order

To secure a more permanent order, a petitioner must allege specific illegal behavior by the defendant.  If the order is based on false information, the defendant may be able to rebut your account of threatening or violent behavior.  Facts to be asserted should be based on direct evidence, including: testimony, written witness statements, electronic recordings (video, phone conversations, social media posts, etc.), physical evidence (medical records, phone records, arrest and conviction records, etc.).    Any authentication you can provide will be helpful (time stamps on recorded media, signed legal reports or records, dated documents supporting past instances of abuse).

Regarding witness testimony, prepare yourself and those supporting you.  Confirm the availability of your witnesses and arrange for their transportation if necessary.  Prioritize your concerns and practice what you want to say. Make a list of the orders you are seeking to maximize your safety and anticipate respondent/defendant challenges to those requests.

5.  The Hearing

Demeanor and appearance can play heavily at these proceedings  (sad but true).  Do dress for court with some formality (no jeans, caps, casual or provocative apparel).    You are asking the court for assistance; show respect for the judge’s authority and observe courtroom protocol.    Speak slowly and clearly (do I really have to say no gum? Yes, I do. I’ve seen it) and give complete answers.   Speak only to the judge unless directed otherwise.  Interrupt no one.  If you do not understand a question, ask for clarification or simply state that you do not understand.

Arrive at least 30 minutes early to navigate through security and find the courtroom.  When the room is open, advise the clerk or officer that you have arrived.  If other cases are called first, sit quietly and actively listen to the other hearings (it will be instructional).  Turn off all electronic devices (yes, I do have to say that as well).

If the defendant/respondent arrives and you feel uncomfortable or afraid, alert the clerk or officer  (and do bring a friend or advocate with you for support).  Do not engage in any type of communication with the respondent. When your case is called, be respectful, courteous and attentive to the judge and court personnel.  Answer questions directly and honestly, and avoid the inclination to add extraneous detail.  As noted above, practice your answers with brevity and clarity; it will serve you well.

6.  After the Hearing

If the judge issues the order of protection, a written version will be prepared.  Review the final version to make sure all of your requested terms are included.  If any terms are omitted, alert the clerk  immediately.

Again, make and keep multiple copies of all your court papers and keep them in a secure place. Have a copy of your protection order with you at all times.   The respondent/defendant must be served with a final order (Note: throughout this process, neither you and nor any other protected party may serve the defendant).

If you are fearful that the defendant may violate the order, be sure your safety plan is in place and trusted friends, family members, co-workers, neighbors, and local law enforcement have been alerted.  Avail yourself to new technologies (phone apps, personal security devices, building safety systems) to enhance your safety.

Be vigilant and be careful, and remember that you have personal, community and legal resources available to enhance your protection.

Don’t forget to consult CourtReference   to find forms, instructions, contact information, and referrals!

 

MaryF

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