How will it affect my domestic violence case?
If a restraining order is granted, it will remain in effect for a period of up to three years. You will also lose you right to own or possess a firearm during that time. This may pose grave consequences for military personnel especially. It also increases the chance of criminal prosecution for any alleged future violations of the restraining order.
While it may be daunting or discouraging to be served a temporary restraining order following an arrest for domestic violence, I welcome restraining orders in domestic violence cases. A restraining order can be a very valuable tool in defeating the criminal case.
The restraining order can go one of two ways. You can postpone the restraining order hearing while the criminal case is pending, or you can move forward and fight the restraining order. Which way your attorney chooses to go will depend largely on the facts of the case and how the allegations are portrayed by the petitioner in the TRO paperwork, the police reports in the prosecutions case, and the investigative reports prepared by your attorney in your defense.
If there is a criminal case pending, it may not be in your best interests to move forward with the hearing. A respondent in a restraining order hearing shall not be required to testify in a civil domestic violence restraining order hearing while the criminal case is pending. Because the respondent’s testimony is necessary in many cases to defend against the restraining order, your attorney may use this as a tool to continue the hearing for as long as the criminal case is pending.
The failure to deny a request to continue the hearing may result in a reversal of the restraining order on appeal. Therefore, if it appears from a review of the facts, discovery, and investigative reports that my client will not benefit from proceeding with the restraining order hearing, I will make several court appearances, file numerous requests for discovery on the petitioner, demand attorneys fees from the petitioner, and request that the court continue the hearing as long as the criminal case is pending.
Many times, this will greatly lengthen the time that my client has any contact with the petitioner that the court no longer sees the need for a restraining order when the hearing finally goes forward. It also burdens the petitioner that petitioner decides to drop the request altogether, once they no longer feel threatened and we are able to resolve the issue outside of court.
In some cases, the restraining order hearing proves to be a valuable tool in defending the related criminal case. Typically, petitioners/victims” in the restraining order hearing are not represented by attorneys. They do not consult with attorneys prior to filling out their declarations on the restraining order forms. They do not consult with attorneys prior to testifying.
They are not coached on how to handle aggressive cross examination, as they would be when testifying in the criminal matter. Therefore, it may benefit you to move forward with the restraining order hearing to allow your attorney the opportunity to expose the weaknesses in the petitioner’s case. This will have grave implications on the prosecution’s case and will serve as an incredibly valuable negotiating tool to force the prosecutor to reduce or dismiss the criminal charges.
Whatever avenue you and your attorney choose with regards to the restraining order hearing, your attorney should welcome the restraining order, and fight it aggressively as if it were a serious felony criminal trial. There is a great deal to lose and gain in a restraining order hearing. It should be taken full advantage of in order to best protect you in a potential criminal matter.
For more information contact me over the phone at (619) 357-4977 or online. My firm offers a free initial consultation. Don’t hesitate to ask questions, the key to preparation is to be fully informed.
To learn about the stages in a domestic violence case click here.