You have filed for a domestic abuse restraining order and the matter has been scheduled for a court hearing or you are on the receiving end of a domestic abuse restraining order and need to prepare for court. What can you expect at the court hearing? How long will it take? Will there be testimony? Can you bring witnesses? Will the court make a decision or order that same day? If the injunction is granted, what is the length of time it is in effect? Who bears the burden of proof in the courtroom? Can you bring a lawyer with you? If you disagree with the decision, can you appeal? These are all legitimate questions and I thought it might be interesting to answer each of them in today’s blog.
The court hearings in most counties are usually scheduled before the court commissioner. They are formal, and on the record, so there either will be a court reporter in the room taking everything down, or it will be a recorded testimony to preserve the evidence, depending on the county the hearing takes place in. There will be a clerk in the courtroom and a bailiff for security reasons, as there are in most court rooms throughout the state.
Most domestic abuse contested court hearings take about 30-60 minutes on average. If the court is crowded that day with numerous other cases, the court may need to expedite the testimony. If it is not that busy of a court day, you may be afforded the full hour of time or more, if necessary to complete the evidence.
Testimony will be taken of both parties. The petitioner goes first and gets to present their case. The petitioner is the person who has applied for the injunction. The petitioner can present witnesses, if appropriate and other evidence as the court deems appropriate. When the petitioner is done testifying, they are cross examined by the other party or their attorney, where one is present for the respondent; the same pattern works for any witnesses call. The court also has a right to ask questions and many times will, of both parties. When the petitioner has finished their case and rests, the respondent gets to present their case. The respondent will testify in defense of the allegations of domestic abuse and when they are finished, are subject to cross examination by the petitioner or their attorney if they have one present. The respondent also may call other witnesses if the court deems just testimony relevant to the case. Witnesses, if any, are also subject to cross examination and the court asking questions, if the court feels that it is appropriate.
Witnesses are allowed for either side, but they better have something very important to say on the issue of whether domestic violence occurred or not; if not, they most likely will not be allowed to testify. Since most of these occurrences do not occur in public, there are no third party witnesses who have knowledge of whether domestic violence occurred or not. Character witnesses are not relevant at a domestic abuse injunction hearing and will not be allowed to testify. The court very well may require what is a called an “offer of proof,” and that is simply a statement by the party wishing to call a witness to testify as to what that person would testify to. Without hearing any actual testimony from that witness, the court will decide if the witness should testify or not. Since the court has limited time to hear these injunction hearings, expect that more likely than not, the court is not too enthusiastic in letting a number of different witnesses testify at the hearing, and if they are allowed to testify at all, it is expected their testimony will be fairly short in duration.
The court will make a decision that same day. After hearing the evidence, the court will make a ruling and make findings and order on whether the burden of proof has been met to issue the injunction or whether the restraining order should be dismissed and the petition denied. Either way, both parties will leave that day with a written court order in their hand. The court must also make sure the restriction on firearms is met under s. 813.12 (4m).
Injunctions can be granted routinely up to 4 years, but there is a provision in the law that allows that to be extended to as long as 10 years if necessary and the statutory factors are met under s. 813.12 (4) (d) 1. . The court routinely asks at the onset of the hearing if the maximum of four years is being requested, should the injunction be granted. The usual injunction, if granted is 4 years.
The petitioner who is requesting the injunction bears the burden of proof in the courtroom. They must show that there either was actual or threatened domestic abuse and violence for the injunction to be put in effect. What constitutes “domestic violence” is defined under the statute at s. 813.12 (1) and in part states, “intentional infliction of physical pain, physical injury or illness, intentional impairment of physical condition, sexual assault, stalking, and/or damage to property.”
While there is no requirement that the parties must be represented at a domestic violence injunction hearing, litigants are both well advised to have experienced family lawyer either help prosecute the petition or defend against the petition. While hiring a lawyer doesn’t guarantee the result, it certainly insures that proper evidence will be presented, skillful and appropriate questions will be asked on cross examination and that the hearing will be conducted in an orderly fashion.
The party who loses the injunction hearing does have the right to appeal to the trial judge to have a new de novo hearing (Latin for “new”) on the same issues. The court is not bound to determine whether the court commissioner made a mistake in making its decision or not. You are entitled to a complete brand new hearing and can present evidence again for the court to decide the issue. The appeal time line varies from county to county, so it is best to check with the local court rule to make sure you timely have your motion drafted and filed with the court for the review hearing.
For more information, contact Karp & Iancu.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
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