Restraining Orders

It takes a lot of self-control not to contact the most important person in your life. Even when it is against the law many people do it anyway at their peril. Restraining orders only go one way, against you. If the victim is calling you keep track of the calls and save the messages, but tell them you are under the restraining order and hang up the phone. A lot of so-called victims of domestic violence will abuse the restraining order by inviting you back, get mad at you again and have you arrested again. They won’t get in any trouble for doing this to you, and you’ll go to jail. Never risk arrest for violating the restraining order for any reason.

Never ignore a civil restraining order, even if you think it was not properly served, was illegally obtained, or based on false information. When a judge issues a temporary restraining order it is illegal to disobey the order. You can be prosecuted for ignoring the restraining order. If you persistently ignore the court’s order by violating the temporary restraining order the judge may impose a permanent restraining order that will last at least three years. Go to the court date on the notice to appear with an attorney to represent you. The prosecution can use anything you say in your civil case against you in the criminal case.

You probably have some property where the victim is living you want to get back. The only way is to hire an attorney or wait until you are appointed an attorney and have the attorney’s investigator contact the victim to arrange to get the defendant’s belongings back or to communicate with the victim for any reason. You risk arrest for violating the restraining order if you go there by yourself, even using the civil standby process. Using a civil standby makes you vulnerable to more misdemeanor criminal charges. Restraining orders prohibit contacting the victim through a third party, which includes your friends, family and their friends.

If a defendant needs to get personal belongings from their house they must contact the police and ask them to stand by while they quickly get their essential possessions. Make sure you are clearly more than 150 yards away from the residence when you call the police. The police will not permit any argument about what belongs to whom and what doesn’t. It is better to abandon your belongings than to set yourself up for a misdemeanor conviction for violating a court order that carries the usual domestic violence penalties.

A defendant in a domestic violence case always has a restraining order put on them by the court making it a misdemeanor crime for them to have any direct or indirect contact with the victim. Even if the victim contacts the defendant the order remains in effect until a judge lifts it. A victim cannot lift a restraining order, only a judge can. This means that if the victim lives there (or the restraining order incorrectly says they do) a defendant can’t go to their house for any reason even if they pay the rent or own it. Defendants can’t call. It is difficult for defendants to visit their children. Even if a defendant is innocent of any crime they can still be prosecuted for violating the restraining order itself. Most restraining order violation cases are easily proven.

Sometimes the D.A.’s office will dismiss a case without filing charges. In this situation the restraining order will still be in place for several days. The D.A. can reinstate the charges for a year if it’s a misdemeanor, longer if it’s a felony. If a defendant makes unwanted contact with the victim after the temporary restraining order expires their activities could be reported to the police and they could be charged with the crime of stalking. Voice mail messages, e-mails, letters, floral bouquets, notes on cars, visits to the victim’s workplace, can all be used in evidence in a stalking prosecution.

A victim who wants to have the restraining order removed in a pending case or where a defendant is on probation has to come to domestic violence court and talk to the judge to explain why the order is unnecessary. A judge wants the victim’s word that they will call the police if there is any new violence from the defendant. A victim’s rights advocate will ask to talk to the victim about why he or she wants the stay away lifted. The assistant district attorneys always urge the judge not to lift the restraining order in the interest of the victim’s safety.

While a case is pending the court often requires the defendant to start a domestic violence batterer’s program and attend several weekly meetings with good progress reports before they will consider lifting the stay away order. The judge presumes that the facts contained in the police report are true when making decisions about the restraining order. Don’t discuss the facts of your case in class or admit new possible violations because domestic violence counselors will inform the probation officer who sits in the domestic violence court. The probation officer is working for the prosecutor.


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