Copyleft 2006 Law Offices of Donald P. Schweitzer
The first step in understanding how to get a restraining order for domestic violence under family law is to realise that this process is very different from how protective orders are put in place automatically in criminal cases. Temporary restraining orders can be given "automatically" in criminal cases by both the police and the court. Before these orders are put in place, there are no hearings to look at evidence. So, in criminal courts, the person who is being protected doesn't have to be a part of the process.
In many cases, victims of domestic violence need to get a restraining order in family court. For example, if the restraining order from criminal court isn't enough to deal with things like child support, spousal support, custody and visitation, they may need to get a restraining order from family court. In other cases, a person who has been a victim of domestic violence may need the help of the family court because criminal charges have not been filed or have been dropped.
For a family law restraining order, the person who wants to be protected has to file his or her own papers, go to at least two hearings, and be able to present evidence. In a family court restraining order case, it is also the Petitioner's job to make sure that the Respondent has been served before the hearing.
At the hearing, people who want a family law restraining order must be able to make their case and show that domestic violence happened by a preponderance of the evidence. So, it is important to have a basic idea of what domestic violence is. Some situations don't count as domestic violence because the people involved don't have the right kind of relationship. Instead, the case could be filed as "Civil Harassment," which has its own process and proof standard.
A permanent restraining order hearing is a lot like a small trial. At the hearing, all the rules of evidence apply, and both sides have the right to present evidence and question witnesses in a way that makes sense. When getting ready for a restraining order hearing in family court, you should write direct and cross-examination questions and, if possible, collect physical and demonstrable evidence. In this high-tech age we live in, e-mails, voicemails, and surveillance videos are often used as proof or proof of a lack of proof. As an exception to the hearsay rule, police reports can also be used as proof. So, people in court should try to get police reports whenever they can, since they can be very convincing to the judge. People who work in the legal field know that getting a permanent restraining order can have serious consequences. Since restraining orders usually limit a person's freedom in a big way and can make it hard for a person to find or keep a job, the courts have been taking these cases more seriously in recent years. Courts are now more sceptical of requests for restraining orders and make the person making the request carry his or her own weight. In fact, it looks like the time when family courts would just "rubber stamp" restraining orders is coming to an end. So, anyone who has to be a part of this process should do their homework before walking into the courtroom.
