The recent volume of domestic restraining orders that are filed are staggering.
A restraining order is also called an “injunction against violence”. When a party files for a restraining order, the Court only considers that party’s allegations and, more often than not, enters an ex-parte (a one-party decision decided by the judge) temporary injunction.
More often than not, the petitioner is the Mother or Wife; the respondent is the Father or Husband. Sadly, I have seen an increase in cases where the Mother or Wife files for a restraining order to gain an advantage in an impending paternity action or divorce. Many times, these injunctions are completely meritless and peppered without outright lies or gross exaggerations.
Despite the same, you as the respondent now need to aggressively address these allegations.
Why did the Court grant a temporary injunction?
Although the Court should only grant a temporary injunction on “clear and convincing” evidence, it is easier for the Court to enter a temporary injunction until the parties’ can both present evidence at a hearing. A hearing is usually set within fourteen (14) days of the entry of the temporary injunction.
This allows the Court to “CYA” in the event the filing party really is a victim of domestic violence OR has reasonable cause to believe he/she is in danger of becoming a victim of domestic violence.
This is terribly problematic for the respondent, as he (or she) will be precluded from having any direct or indirect contact with the petitioner until the Court enters a final ruling on the restraining order. If the parties are residing together, the respondent is precluded from going to the residence without a police escort. Additionally, if the parties have minor children, the Petitioner can deny contact with the minor children.
Bottom line, the respondent’s life is “flipped on his/her ear” until the Court can enter a final ruling.
What is the standard for an injunction
At a final evidentiary hearing, the Court will decide whether to deny the injunction, extend the temporary injunction or grant a permanent injunction if the Court finds by competent substantial evidence that the Petitioner is victim of domestic violence OR has reasonable cause to believe he/she is in danger of becoming a victim of domestic violence.
Should the parties hire attorneys for restraining orders
Please be advised that although both the respondent AND the petitioner should hire an attorney familiar with domestic violence proceedings prior to the evidentiary final hearing, and if possible, prior to filing the Petition, it is imperative that the respondent hires an attorney to protect his/her rights.
The respondent should NOT go to Court without an attorney regardless of the veracity of the allegations.
Are restraining orders “evidentiary” in nature
Restraining order hearings are complicated as they are mini-trials. Testimony is taken; the parties can be cross-examined. If you are not prepared (pictures, exhibits, emails, text messages, reports, witnesses), you risk the possibility of having a permanent restraining order entered against you with a finding of fact. Additionally, anything you say can be used against you at another civil hearing (i.e. divorce) or criminal hearing.
Occasionally the State Attorney’s Office will file criminal charges as a result of an admission you made at this hearing (i.e. calling or sending text message to the Petitioner after the entry of the temporary injunction).
What are the consequences of the entry of a restraining order?
Despite the obvious concerns, a final restraining order entered against you could also have far-reaching consequences including the possibility of violating the restraining order and being arrested. Other incidental consequences include affecting your credit score and job placement. Additionally, a restraining order can place you at a huge disadvantage in your divorce or paternity proceedings.
Speak with an experienced restraining order attorney today!
The family law and criminal defense attorneys at Lyons, Snyder & Collin are familiar with domestic violence cases and restraining orders. Sean Collin has handled thousands of divorce proceedings while Philip Snyder is a former domestic violence prosecutor. Please call one of our experienced restraining order attorneys if you are considering filing for a restraining order or have been notified that you have a restraining order filed against you. The consultation is free as always.