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PART II – PRACTICAL ADVICE FOR DEFENDING AGAINST A PROTECTION ORDER

December 22nd, 2013 · No Comments

Last month I published  Beyond the Paperwork: Practical Advice for Obtaining a Protection Order  on this blog site.  This month, as promised, I would like to address some strategies for defending against an order of protection.

As noted in my previous article, there can be grave consequences if a protection order is filed against you.  For the purposes of this post, consider a “protection order” the same as a restraining order or no-contact order; the terminology changes depending on your jurisdiction and your relationship to the petitioner.

Protection orders must be issued by a court and are designed to prevent threats or acts of domestic violence, stalking, and harassment by limiting contact with the petitioner/victim.

Typically, the petitioner files for a temporary or emergency order of protection.  Only the petitioner is present at the initial hearing and the judge will either grant or deny the request.   The judge is likely to err on the side of caution based upon the petitioner’s sole testimony; temporary protection orders are usually granted.   A subsequent hearing is then scheduled (within two weeks) to determine if the temporary order should be continued indefinitely.  At that time the respondent/defendant can present evidence to counter the petitioner’s claims of threatening or violent behavior.

As a respondent, once you are served, you must abide by the terms of the protection order until the continuation hearing. It does not matter if the temporary order was based upon false or misleading testimony-do NOT contact the petitioner under any circumstances.  You could face charges for contempt of court or violation of a protection order, with penalties that include fines and/or incarceration.   Any communication with the petitioner before your hearing will all but guarantee a more permanent and restrictive protection order set against you.   If others are included in the no contact order (children, other relatives, friends, co-workers) do not make any overtures to them either.

Alternatively, if the petitioner/victim violates the order by reaching out to you, do NOT respond in any way or by any medium.  Document any of the petitioner’s attempts to communicate and be prepared to share this information with the court and your attorney, should you retain one.    This is a two-way street; no contact means no contact, and both parties must strictly adhere to the terms of the order.  If you can demonstrate that the petitioner has made efforts to contact you, such evidence may negate the claim of fear or imminent danger from you.

If possible, hire an attorney to represent you.  This is a contested hearing (to continue the protection order), with potentially devastating legal, professional and personal ramifications.  If you cannot afford to retain counsel, seek out any low or no cost legal clinics or advocates that may be able to assist or advise you.  Use CourtReference to help you begin your search: select your State and County, then choose the “Legal Aid, Lawyer Referral option from the Court Resource Category menu.   You may also find links to your local and State Bar Associations under that option offering additional referral services.

In your search you will find many legal and social services advocating for victims of domestic violence.  This is a compelling problem for the legal system, and it is understandable that the prevailing public policy is one of prevention and protection.

But, sadly, there are instances of false reporting of domestic violence.  The claim is often used for strategic advantage in a divorce or custody dispute, or as a retaliatory gesture in a contentious breakup.  It is difficult to refute a claim of “fear” of imminent danger, but it is not futile. You must rally all available defenses to challenge the alleged threats or acts identified in the  petition for the temporary order.  These will be the same “facts” that are presented at the continuation hearing.

The petition lists specific acts used to justify the creation and continuation of the order.  Evaluate each  incident and prepare your responses and defenses.  Were your actions or behaviors mischaracterized? Particularly for the most egregious offenses alleged, do you have evidence that could rebut the petitioner’s account or perception?  If you have witnesses that were present at or around the time of the alleged incident(s), their supporting testimony will be critial in advancing your defense.  Evidence that contradicts or discredits the petitioner’s claims of threatening behavior may also include:  electronic recordings (video, phone, social media posts, etc.), written witness statements, medical records, phone logs, arrest and conviction records, and law enforcement incident reports.  Any credible information you can offer to show that no threatening or violent acts occurred may result in the dismissal of the order.

As mentioned earlier, overtures made by the petitioner after the filing will cast doubt on his or her actual fear of  harm from you.  Document any communication initiated by the petitioner, particularly any expressions of remorse or regret, or offers to “negotiate” a less harsh contact ban between you.

After preparing your defenses to each incident alleged, anticipate the petitioner’s evidence and testimony.  Does the petitioner have credible witnesses to support the claims asserted?  If a witness is not believable, do have additional information to impeach his or her character or reputation?    What physical evidence can the petitioner present to support continuing the order?  As the respondent, you have a right to subpoena any records presented with the original order, and can also compel appearances by the petitioner’s witnesses-including those who have provided written testimony, but who may be reluctant to appear in court.

Regarding your own witness testimony, prepare yourself and those supporting you.  Practice what you want to say and what you believe to be your most compelling and persuasive arguments.   Make sure your witnesses are comfortable and confident in their testimony.  Confirm your witnesses’ availability, and provide transportation or directions to the courthouse if needed.

I will reiterate what I stated in last month’s blog article about demeanor and appearance.  Do dress for court with some formality; observe courtroom protocol and show respect for the judge and court personnel.  Speak only to the judge unless directed otherwise.  Interrupt no one.  Speak slowly and clearly, and give complete answers.   If you do not understand a question, ask for clarification or simply state that you do not understand.  If you or the petitioner  require translation services, be sure to request that well in advance of  the continuation hearing.  In fact, if English is not the petitioner’s first language, it is possible that some of the alleged incidents were not accurately translated in the protection order application or in the charging papers or incident report.  If you believe this may be the case, challenge the interpretation and reliability of the initial translations at the hearing.

A final point about demeanor at your hearing.  Since you are defending yourself against claims of potentially violent or threatening behavior, you must demonstrate contrary qualities of  calmness and restraint.   How you conduct yourself at the hearing will weigh heavily upon the judge; keep this foremost in your mind even if you are offended and outraged by the allegations leveled against you.

It is shameless that protection orders are used as retaliatory tools in relationships or for strategic gain in family court.  But never dismiss these charges as  trifling, or ignore a temporary order and allow it to continue indefinitely by default due to your inaction.  You stand to lose significant rights as well as your reputation and status if the order stands.

Did you know that you may lose your right to possess a firearm if you are the subject of a restraining order?  Regardless of whether you need a gun for employment (e.g., law enforcement, military), you will forfeit that right in many states and under the federal Violence Against Women Act you will lose the your right to have a gun or ammunition for the duration of the protection order. Also be aware that a protection order is a part of the public record and is generally accessible to anyone from your state court records provider.  Potentially your current or future employment could be impacted by this protection order information, as many employers and prospective employers routinely perform background checks.   When you submit to a credit check to purchase a home, secure a credit card, or rent an apartment, this disclosure could adversely affect your application.   In a divorce, the perception of being a violent spouse could influence support and maintenance decisions, and certainly affect custody assignment and visitation of minor children.

I am sure you can imagine just how damaging the  label of  “abuser” could be to your professional  and personal life.  Don’t let a false claim destroy your reputation.   If you are facing such an accusation, I implore you to use any and all resources to seek dismissal of the protection order.  And good luck!

 

 

MaryF

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