If you’ve been served with a restraining order, don’t panic. This article will guide you through the process of defending against a restraining order and protecting your legal rights.
Understanding Restraining Orders
A restraining order is a legal document that prohibits an individual from engaging in certain activities or behaviors, typically in relation to another person or group of people.
The specific terms of a restraining order may vary depending on the situation, but they often include restrictions on the following:
- Contact: The restrained person may be prohibited from contacting the protected person in person, by phone, email, or through social media.
- Proximity: The restrained person may be required to stay a certain distance from the protected person or their home, workplace, or school.
- Behavior: The restrained person may be prohibited from engaging in certain activities, such as stalking, harassing, or threatening the protected person.
- Possession of weapons: The restrained person may be required to surrender any firearms or other weapons in their possession.
Restraining orders are typically issued by a judge, and they can be temporary or permanent.
Temporary restraining orders are granted without a hearing, but they are only valid for a short period of time (usually 2-3 weeks).
On the other hand, permanent restraining orders are issued after a hearing in which both parties can present evidence and argue their case.
Reasons for Contesting a Restraining Order
There are many reasons why you might need to contest a restraining order. Some of the most common include:
- False accusations: The person seeking the restraining order may have lied or exaggerated the facts to obtain the order.
- Lack of evidence: There may be insufficient evidence to support the allegations made in the restraining order.
- Violation of due process: The order may have been obtained without allowing you to present your side of the story or without proper notice.
- Infringement of your rights: The order may restrict your freedom of movement or your ability to contact family members or attend work or school.
What to Do When You Receive a Restraining Order
If you are served with a restraining order, the first thing you should do is read it carefully. Make sure you understand the restrictions and requirements of the order.
Even though there has not been a hearing, the order is in place, and it is valid and enforceable. You could face serious legal consequences if you violate the order, including being arrested.
Next, you should consult an attorney who specializes in restraining orders. An experienced attorney can help you understand your rights and obligations and develop a strategy for defending yourself.
How to Fight a Restraining Order and Win
To successfully defend and win a restraining order case, you typically need to provide evidence supporting your claims and refuting the other party’s claims.
The type of evidence required may vary depending on the specific circumstances of the case, but some examples of evidence that could be used include:
- Police report that contradicts the restraining order’s allegations.
- Witness testimony from people who have observed the alleged incident who will testify that there was no aggressive behavior, threats, harassment, or abuse.
- Text messages, emails, social media posts, or other communications that contradict the restraining order’s allegations.
- Audio or video recordings that demonstrate that you did not engage in the behavior alleged in the order.
Real-life Example of Winning a Restraining Order Case
In my practice, we have successfully defended these types of cases. In one case, a wife sought a restraining order against one of my clients, claiming he had physically abused her and threatened to kill her.
My client denied the allegations, and we defended him in court. During the trial, we presented evidence that contradicted his wife’s claims.
We presented testimony from friends and family members who stated they had never witnessed any violence or threatening behavior from him.
We also presented text messages and emails that showed that his wife had contacted him after the alleged incidents and had even expressed her love for him.
We argued that our client had been falsely accused and his wife was simply trying to gain an advantage in their ongoing custody battle.
After reviewing the evidence, the judge agreed with our client’s arguments and denied the wife’s request for a restraining order.
What Happens in Court When You Fight a Restraining Order?
When you contest a restraining order, a hearing will be scheduled. At the hearing, you and the person seeking the order will have an opportunity to present evidence and arguments.
The judge will review the evidence and decide whether to grant or deny the order.
It is crucial to prepare for the hearing carefully. You should dress professionally, arrive early, and bring all the evidence you plan to present.
You should also be prepared to answer the judge’s questions and cross-examine any witnesses presented by the other side.
What Happens If the Restraining Order Is Granted?
If the restraining order is granted, you must comply with its terms. Violating the order could result in fines, imprisonment, or other legal penalties. If you believe that the order was granted unfairly or is too restrictive, you may be able to appeal the decision.
Will a Domestic Violence Order of Protection Affect My Ability to Own a Gun?
Under federal law, 18 USC §922(g)(8), individuals who have been issued a domestic violence protection order (DVPOs) after notice and hearing are prohibited from purchasing or possessing firearms.
However, those subject to ex parte DVPOs (temporary orders issued without notice) are not prohibited from owning firearms under federal law.
Since the period after filing for a temporary order is the highest risk period for victims of domestic violence, some states have prohibited respondents of ex parte DVPOs from possessing firearms. Check with your local law enforcement to see what the law is in your state.
Do I have to Surrender My Guns if an Order of Protection is Granted?
Federal law does not provide guidelines on removing guns from individuals who have been issued a domestic violence protection order and who already possess firearms when they become prohibited.
Federal law leaves it up to individual states to establish their own removal processes. However, not all states mandate the removal of guns.
Check with your state’s laws to see if you must surrender your guns if a domestic violence protection order is entered against you.
Being served with a restraining order can be a stressful and overwhelming experience. You have the right to defend yourself and to contest the order if you believe it is unjustified.
By consulting with an experienced attorney and presenting compelling evidence in court, you can successfully defend yourself against a restraining order and protect your rights.