This article will explain what happens if you are served with a domestic violence restraining order, which is rather easy to obtain. It will also explain how to handle accusations of domestic violence and what you can do to help your case.
What is a Domestic Violence Restraining Order
A domestic violence restraining is a protection order issued by a court designed to keep an alleged abuser, who was once in a close relation with the accuser, at a safe distance from the accuser and to compel the alleged abuser to cease any harassment. A domestic violence restraining order is not a criminal action, it is a civil order. The ease in which an accuser can obtain domestic violence restraining orders, which is frequently a woman, has many men concerned about being falsely accused by an angry ex-girlfriend or ex-wife after the relationship ends. You may wish to read an article providing more information about domestic violence restraining orders.
Understanding the nature of domestic violence restraining orders
The courts take domestic violence very seriously and have been known to grant them frequently when requested. It is very easy for an accuser to get a domestic violence restraining order. All an alleged victim has to do is file a domestic violence restraining order form with the court and go before the judge and state why they need a domestic violence restraining order against you. The reasons they provide can be either based in truth or something out of fiction since no proof of guilt of the accused is needed before an order is issued. This is why some believe that domestic violence laws can penalize innocent people before they are proven guilty and is an exception to the general rule. The federal “Violence against Women Act of 1994” that was passed in an effort to help battered women, which had become recognized as a serious problem. The challenge today is how to prevent the abuse of law that can occur with some regularity, typically where an angry ex-lover may fraudulently seek protection from abuse as a way to extract revenge.
How Restraining Orders are Granted
Any man or woman in a relationship or who has been in a relationship with someone that is considered "close" under the law (such as a spouse, live-in girlfriend, etc.) can go to a Family Law Court Clerk’s office and file a request for a Temporary Restraining Order. The alleged abuser does not have been informed of the filing so the alleged abuser does not appear in court to defend themselves against the Temporary Restraining Order when it is filed. The abused person is the only party who testifies before a judge to make his or her request. All that is required for a Temporary Restraining Order is the allegation by the victim of feeling fearful of abuse or significant fear of harm from a family member, live-in roommate or partner, person with whom the victim had just ended a relationship or may still be dating. The traditional rules of evidence are not used and a burden of proof beyond a reasonable doubt is not required. A police report is also not required and, in most cases, a judge will grant a Temporary Restraining Order.
You Must Be Served before it is Effective
Once the Temporary Restraining Order has been granted, it will not go into effect until you are served with notice of the order and it will include a hearing date for you to appear before a judge and testify on your behalf regarding the charges. The hearing is usually within 10 days to 4 weeks (depending on where you live.) You will be given a form to file on your behalf when you are served. You should fill out and file the form, which is also known as your “Answer”, so you can tell the judge why you agree or disagree with the Temporary Restraining Order. If you are not served with the Order, the alleged victim will have to file for a reissue of the Temporary Restraining Order or ask for it to be extended until you can be served. If the alleged victim does not file for the reissue or extension, the matter will be dismissed, usually after 30 days in most states.
The "No Contact" Provision
Almost all Temporary Restraining Orders will state that there is to be no contact between you and the alleged victim. This means that the police will remove the man or woman from the home against whom the Temporary Restraining Order applies. Women rarely have Temporary Restraining Orders filed against them but it does happen occasionally. In many cases, men who are served with a Temporary Restraining Order are usually surprised and confused about what has happened. However, if they actually abused the woman, they may have an idea that they will be served a restraining order and, if the police are called, they will be removed from the home immediately and an Emergency Protective Order will be filed against them at the request of the arresting officer. A Temporary Restraining Order may also provide for no visitation rights allowed with children in common.
Domestic Violence Restraining Orders are not Criminal Unless Violated
A Temporary Restraining Order or permanent restraining order is not considered a criminal matter unless it is violated by the alleged abuser. If you violated the terms of the Temporary Restraining Order, you can be arrested, be charged and have a criminal record. However, if there has been physical abuse, the victim may also file criminal charges with the police and an arrest will be made, giving you a criminal arrest record as well. This is why it is imperative that you know your rights if you've been served with a Temporary Restraining Order or Domestic Violence Restraining Order. You may wish to consult on the matter with an experienced criminal defense lawyer who can also may be able to help you expunge a Domestic Violence Restraining Order.
Domestic Violence Responding to a Domestic Violence Restraining Order
By Michael Wechsler |
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