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 accessing the courthouse if they want to pursue a restraining order; While this may sound simplistic,  the best way to 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 will be dismissed. You will be allowed to cross-examine the petitioner, and you will be allowed to testify on 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 by filing a motion for a de novo hearing before the trial judge assigned to the case. You can also present evidence such as text messages, photographs,  and notes to the court that may be relevant to the case.

A person has an automatic right to appeal the case to the trial judge by asking for a hearing de novo and requesting a complete new hearing. Under the statute, you have 30 days to appeal from a domestic abuse injunction granted by the court commissioner.  Your appeal of 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, bring witnesses to testify on 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 most likely need an attorney 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 timeline can be shortened to 45 days if proper formal written notice is given to you advising that the timeline is diminished from 90 to 45 days to appeal.

Keep in mind that 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 injunctions, even if you feel strongly that they were unjustly obtained.

If you have questions on family law issues, including a harassment or domestic violence injunction, contact one of our experienced Wisconsin family law attorneys at Karp & Iancu, S.C. today.