Restraining Orders

Generally, when someone files for a protection order, it’s common that the judge will issue an immediate temporary ex parte order that same day. An ex parte order becomes effective when it is served upon the respondent and is still a valid court order even though it was issued without both parties present. However, this order is supposed to only last a short period of time and then there is supposed to be a court hearing in front of a judge where the judge decides whether or not to grant a longer order. It is very important to try to have good legal representation at this court hearing to try to prove to the judge that the longer order should not be issued. Have you tried to get a lawyer? We have listings for attorneys in STATE on our Finding a Lawyer page, some of which may be free or low-cost if you qualify. [HYPERLINK]

At that hearing, both parties have the right to “make their case” through testimony, witness testimony, documentary or photographic evidence, etc. Each party also has an opportunity to cross-examine the other party in order to try to make it clear to the judge if the other party is not credible/is lying. The judge would listen to both sides and decide whether or not to grant the protection order. As I said, at the hearing for the final order, it is often extremely beneficial to have a lawyer. A lawyer will understand the laws of evidence in the state, which deals with what type of testimony and evidence can be admitted in the hearing and how to cross-examine the other party – a pro se person will likely have a very hard time doing all of this; but we do have information about how to represent yourself at a hearing on our Preparing for Court - By Yourself page that can help. 

Since you said that the person who filed for this order against you is actually the one who has been abusive to you, I also wanted to mention that it is not uncommon for a batterer to use the legal system as a way to continue to abuse the victim by 1) falsely getting orders of protection; and 2) falsely reporting to the police that the victim violated the order so that they get falsely arrested. This allows the abuser to keep power and control over the victim. This is an important reason that victims often choose to fight against the final order being issued against them instead of consenting to the order. Many times the judges or lawyers will encourage someone to consent to the order being issued against them, using the rationale that if the respondent does not plan on violating the order, it shouldn’t bother them to have an order against them. However, this way of thinking can be dangerous and doesn’t account for the fact that someone who is abusive and gets a protection order as a form of control may try to falsely accuse the respondent of violating the order as a form of abuse. If someone is arrested for a violation of the order, this may have serious consequences on future custody cases, restraining order cases, or immigration matters, not to mention on the person’s criminal record.

A judge cannot force a person to consent to a final order being issued, however. As I mentioned above, a person has the right to a hearing where s/he can defend himself/herself and then the judge will have to decide if the batterer-petitioner proved his/her case against the victim-defendant.

During the time that there is a temporary or permanent order in place, one idea that people may consider is to start keeping a daily log or calendar of where they are each day in case the petitioner tries to falsely report to the police that the respondent violated the order.

For instance, the petitioner could call the police and say that last Thursday, the respondent came to his/her home at 1 pm. If the respondent has recorded in his/her daily planner that s/he was at work at that time, this information may be helpful to prove that the respondent didn’t commit the violation.

Also, while there is an order in effect, it is up to the respondent to obey the order. For example, if the order tells the respondent to stay away from the petitioner’s house, s/he could still be violating the order and be subject to arrest if s/he goes to the petitioner’s house even if s/he invites him/her over there.

We have information on the protection order process in STATE here: LINK Also, here is a link to the specific claims that a petitioner would have to prove to get a protection order in STATE: LINK TO WHAT IS THE LEGAL DEFINITION OF DV QUESTION ON RO PAGE While the information is geared toward individuals seeking a protection order, the information may be able to help someone defending him/herself against a protective order as well. And here are some tips for representing oneself in a court in case you are not able to get a lawyer.