Domestic Violence Restraining Order Defense

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If you have been served with a temporary restraining order from the family court, it is crucial that you read the order and follow it. The 14th amendment guarantees you a right to a hearing on the merits of whether the temporary order should become a permanent one. Restraining orders are a very serious matter and can effect your life up to 5 years. You need to be proactive and hire the best defense attorney you can afford. Having us on your side levels the playing field, especially when most of the petitioners are self represented.

Hearing – Remember the Date

It is very important that you go to your hearing. If you do not go to court, the judge can make the restraining order without hearing your side of the story. And the order can last up to 3 years. The date of the hearing is listed on the DV-109 notice under section #3.

Answer Allegations 

You should properly fill out a DV-120 (Response To Request for Domestic Violence Restraining Order). The information you provide in this form will be read by a judge. You need to convey your side of the story in the most persuasive manner. Although you may choose to write a response personally, please remember your reader (a judge). Having a well written response always makes a reader more appreciative and a writer more believable.

Remember to attach all of the evidence and exhibits to the response. Properly cite the exhibits in your response, so it is easy for the judge to read your paperwork.

If you also have a criminal case related to the abuse or violence in this case, it is very important you talk to an attorney. Anything you say or write in the domestic violence restraining order case can be used against you in your criminal case. Turn in the DV-120 paperwork to the court’s clerk and properly serve the other opposing party.

Hearing/Response – What Should You Say

1. You need to expose the lies in the restraining order request. If something is a completely false accusation, you need to write it in your response and bring it to judge’s attention. Lies can be proven by witness statements or other evidence. It is better to expose a lie with evidence rather than your own statement. Look through your emails, phone records, police reports and other evidence to contradict the petitioner’s allegations.  We have seen our clients be in two places at the same time according to petitioners.

Also, look at the evidence provided with the R/O request by the petitioner. If there were physical altercations, are police and medical reports attached? If there are “abusive” text messages or phone calls, is that evidence attached.

2. Do not forget to look for contradictions within the allegations. Petitioner might state that there has been physical abuse, yet on the next page state that you only had verbal altercations. Petitioner might state that you were violent on a certain day, but the text messages from that day make it seem that you were friendly. 

3. Make sure alleged dates, times, and places of the “abuse” make sense. It sounds so simple, but petitioners often overlap incidents. If the petitioner cannot remember the “abuse,” then why should the court believe him/her?

4. Be prepared for new allegations at the hearing. Petitioners often state new instances of abuse or violations of temporary retraining order. Listen to petitioner carefully and take notes. You need to be able to point out that the new allegations are false or exaggerated. 

5. Familiarize yourself with the law. The petitioners needs to meet a legal standard under the law. If the petitioner states the abuse, but it does not meet the legal definition of abuse, then the restraining order should not be granted. This is where it especially helps to have an experienced attorney on your side. 

6. Do not forget to tell the judge about yourself, focusing on the positives. Most respondents take a defensive position during the hearing. The judge is also interested in you as a person. The judge needs to hear that you may be a busy individual with a full time job, you take your children to school and sport activities, or you are afraid of losing mutual friends.

7. Find petitioner’s alternative motive. If you have evidence to prove that the petitioners just wants to keep the children away from you or get vengeance. The petitioner might be trying to get custody of the children or get a head start on the divorce proceedings. These examples should NOT be reasons for a restraining order. Unfortunately, people often misuse our judicial system. You might have text messages stating that if you don’t do something then the petitioner will file a restraining order. It is important to have actual evidence in proving ulterior motive. Telling the judge of the motive without evidence will not yield results. 



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Call 619-357-6677 for a consultation. 

If you have been served with a Temporary Restraining Order, please give us a call at 619-357-6677. 

logoDelicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP.   Google+