What Is The Order Of Protection? How Can It Be Filed And Upheld?
The order of protection would be based on a perceived threat of ongoing violence or harassment by a person. There doesn’t have to be a criminal case pending, but that’s quite common but just a perception of ongoing threats or harassment of some kind by one party against the other that the courts really require.
The person seeking the order of protection would go to court and have the order initially issued. The other party has to be served before it takes effect. They are served with a copy by the police. The other party then has the opportunity to contest it. They have 10 days in which to request the hearing to contest it but in the meanwhile, it remains in effect until it is contested.
At the hearing, they can say, “Well, no, I believe the case wasn’t justified by the facts”, and a judge decides that or not. If the judge believed there wasn’t a basis for believing threats, then it would be dismissed or the judge could modify it as necessary between the two parties, e.g. make separate arrangements for visitation with the children.
Things like that can be done in the hearing for the order of protection. That’s the general grounds for it, perceived threats, for physical action against them or harassment and that would be how it could be contested or modified in the event the defendants would want to have it modified.
What Should Someone Do If There Has Been A Restraining Order Or Order Of Protection Filed Against Them?
Obey it. Plain and simple. Because once the order of protection is in effect, one of the grounds for a domestic violence charge would be a violation of an order of protection. If the mother has an order of protection, even though the defendant had never been charged with a crime, they’ve still got a restraining order based on possible threats. If the defendant violates it, then the defendant will be charged with a violation of judicial order and will get charged with domestic violence with it.
So the first thing is, always obey it and the second point is, if someone says to their partner, “Come and get my things out of the house”. If there is an order of protection in effect and they want to get things out of the house, they should contact the police department to make arrangements to go to the house to get their property.
If they do that, that’s fine, there won’t be a violation of the order of protection. But if they just take the time themselves to do it, that’s a violation of a judicial order and a basis for a crime of interference with judicial proceedings. Judges take that pretty seriously because even though the judge is not the victim, nevertheless, in a sense the judge is because it’s the judge’s order, not the victim’s – the judge’s order at that stage that has been violated.
So, they take it very seriously. Getting back to the order, as long as there is not a criminal case pending, the victim can always go to the court and say they want to drop the order of protection and quite often, that happens. But until that happens, it remains in effect.
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In Order To Get The Restraining Order Lifted Or Modified, Can The Victim Only Drop It Or Can The Attorney Also Have It Dropped?
If it’s initially when the person is first served with the order of protection and they have 10 days to request a hearing, then they can do that. They can request a hearing and do it within that time period. If it’s after that, it gets a little trickier because then it would have to be some way to contact the victim.
For example, if there is a criminal case pending, then the accused can contact the victim through the prosecuting agency, which is a little easier. If there’s not, then it gets very tricky because they can’t have any uninvited contact and if the defendant’s attorney does it, that’s still uninvited contact, so it gets a little trickier.
Usually, in the context of either an order of protection or more likely, in the context of a criminal case, which usually the violation is no uninvited contact, meaning the victim can certainly initiate contact and many a times, it’s not uncommon to have the victim come into the lawyer’s office and meet with the lawyer and as long as the lawyer is not the one initiating it, there is nothing wrong with that.
It’s not that unusual to have the victims come in and pay the attorney’s fees for the case because they have had second thoughts afterwards and want to try to get the case dropped. They are the ones that go out and hire the attorney. They do that when the defendant is in custody had that happens many times.
Under those circumstances, the attorney can talk to the victim as long as the victim is the one that initiates it and tells the victim what they can do in terms of telling the prosecutor if there is a criminal case pending on how they can get the conditions modified.
Domestic relationships are very dynamic and they just don’t happen in a void. It’s not uncommon for the victims to have second thoughts and want to help the defendant.
If you have questions regarding Restraining Orders and How They Work, call the law office of Attorney Gordon Thompson for a FREE initial consultation at [number type=”1″] and get the information and legal answers you’re seeking.