Contesting a restraining order
Your spouse or former significant other has threatened to go to the courthouse and obtain some type of restraining order against you. Is there any way to prevent them from doing so, or to fight the matter in court?
You can’t really prevent someone from access to the courthouse if they want to pursue a restraining order; I know this may sound simplistic, but the best way to a avoid someone going to court and obtaining a restraining order against you in the first place, is to avoid certain behavior or conduct that would give rise to them obtaining a restraining order.
Notwithstanding your words or actions, if they are intent on going to court, they can obtain a limited temporary 2 week restraining order against you. They simply go to court and obtain an ex parte petition for either a harassment or domestic violence restraining order, and the temporary restraining order is usually in effect for two weeks. They will need to have the sheriff personally serve you with that order and you will be summoned into court for purposes of determining if that restraining order should be dismissed or be entered as a more permanent injunction for up to four years; that will be your first legal opportunity to challenge the merits of the orders against you.
At this contested hearing, the person who obtained the restraining order against you will be there in person and gets to testify first; if they fail to show up to prosecute their own restraining order request, more likely than not, the petition would be dismissed. You will be allowed to cross examine the petitioner and you will be allowed to testify in your own behalf. You can bring a lawyer with you to defend you on the petition. You also may be allowed within the court’s discretion and limits in time, to present other witnesses to testify against the allegations made by the petitioner. If after a full blown hearing the court grants the injunction and if at this level, the hearing is before a court commissioner, you will be given a second chance to contest the injunction.
A person has an automatic right to appeal the case to the trial judge by asking for a hearing de novo and request a complete new hearing. It is important to follow the local court rules in filing the appeal as every county has their own local time line on when you can appeal. Your appealing the decision however, does not vacate the order until you go to court and the judge decides if the injunction should be dismissed. At this next hearing, you will be given the right to testify again, cross examine the petitioner, bring an attorney to help you and within the judge’s discretion, to bring witnesses to testify in your behalf.
Should the trial judge affirm the injunction, you have a third chance of defeating the order, by filing an appeal within 90 days of the written court order to the Court of Appeals. You will definitely need an attorney in my opinion for this purpose and it can be quite costly. Your chances of success on appeal are not particularly very good, but one has the right to try. The appeal time line can be shortened to 45 days, if proper formal written notice is given to you advising that the time line is diminished from 90 to 45 days to appeal.
Keep in mind during this entire process, a temporary restraining order or injunction for the four years carries criminal sanctions, including fines and imprisonment, if violated in any way. You must strictly abide by the restraining orders or injunction, even if you feel strongly they were unjustly obtained.
If you have questions on family law issues, including a harassment or domestic violence injunction, contact one of our experienced family lawyers at Karp & Iancu, S.C. today.