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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!

 

 

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Who is a Friend of the Court?

November 29th, 2013 · No Comments

Actually, the correct question is “What is a Friend of the Court?” The Friend of the Court we’re describing here is not a person. There is a different type of “friend of the court” who can be a person – or a group or organization – who files a brief in an appellate court case. If they are not a party to the case, they are an amicus curiae (Latin for “friend of the court”). They may be providing additional information to help the court take a broader view of the issue on appeal, or they may be providing additional legal arguments for one side or the other. Either way, they must ask and receive the court’s permission to have their position considered. And they only operate in appellate courts, most notably in the United States Supreme Court.

Since CourtReference’s information is all about trial courts, we want to introduce you to the other Friend of the Court – the one that’s not translated from Latin, which doesn’t need the court’s permission, and which exists only in Michigan. This Friend of the Court is an office in the Family Division of Circuit Court in every Michigan county. It assists the court with custody, support, and parenting issues in divorce cases involving minor children. By providing investigation, mediation, and enforcement services, it also assists the parties in the case.

The Friend of the Court reviews divorce case files to insure that custody, support, and parenting time are adequate and are being carried out according the court’s orders. It also makes reports and recommendations to the court, and provides information to the parties. In many Michigan counties, the Friend of the Court provides forms and mediation services. Forms, publications, parenting time and custody guidelines, and the support formula come from the Friend of the Court Bureau, a state agency that oversees county Friend of the Court offices and provides training for Friend of the Court staff.

The Michigan State Disbursement Unit (a division of the Department of Human Services) is responsible for collecting all child support payments and disbursing them to the custodial parent. But local Friend of the Court offices manage the associated details including address changes, requests for modification, setting up income withholding, and collection of additional fees due to the Circuit Court. Some local Friend of the Court offices collect child support payments and forward them to the Disbursement Unit.

Both the Michigan State Disbursement Unit’s list of Friend of the Court offices and the Michigan Courts website have contact information for each county office.

The Friend of the Court Handbook has details about the Friend of the Court offices’ operations and services that apply statewide. Detailed information about local offices can be found on those offices’ websites. Most Michigan county Friend of the Court offices have a website, and they’re all linked on CourtReference’s Guide to Michigan Courts – Self Help and Legal Resources page. Check the “Michigan Multiple County” section for links to the 13th Circuit Court Friend of the Court and the office serving Baraga, Houghton, and Keweenaw Counties. Check the individual county sections for links to single-county offices.

Friend of the Court websites in smaller counties may have contact information only, or a general description of the office such at that found in Arenac County. Larger county office websites may have extensive content, such as the Ingham County office’s with its video introduction and links to forms, forms help, FAQ, office map, and additional resources.

 

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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!

 

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