Restraining Order Q & A

RESTRAINING ORDERS – THEY’RE NOT JUST ABUSED; THEY’RE ALSO ABUSIVE

by: Todd Green

Retraining Order Q&A

DISCLAIMER: This page is intended as a resource to those bewildered by the restraining order process and offered because attorneys rarely dispense information or counsel freely that they could bill for. The replies below are those of this blog’s author, whose knowledge of restraining orders and restraining order abuses is grudging and unqualified by any formal education in the law. I’m not an attorney. If in doubt, consult a licensed professional.

If you are the defendant in a restraining order case (that is, if you are the recipient of a restraining order), especially one based on false/fraudulent allegations:
1. Read the court’s order front to back so that you understand its restrictions and expectations to the letter. Be able to quote it from memory.

2. Immediately apply to the court for an appeals hearing if you haven’t already been assigned one. This will provide you with an opportunity to contest the restraining order applicant’s allegations and have the order quashed (that is, negated, nullified, canceled). You can do this by mail, by phone, or by visiting the courthouse.

3. File a motion for continuance with the court to request a postponement of your appeals hearing to provide you with additional time to find and consult with an attorney (if within your means), gather evidence (which may include affidavits from witnesses), and prepare your defense. This is just a matter of going to the courthouse, explaining to the clerk what you’re after, and filling in a few lines on a form. You may even be able to do this by phone. Have your case number handy. The worst that can happen is that your motion is denied.

4. Request a copy of the restraining order applicant’s affidavit to the court. This is his or her written narrative explaining why s/he “needs” a restraining order. If you’re assertive, a clerk at the courthouse should provide you with a copy with some information redacted (crossed out), such as the applicant’s address. Knowing what the plaintiff has alleged against you is both your Constitutional right and essential to your defense.

5. Exploit any and all available resources to obtain the services of a qualified attorney, that is, an attorney both experienced with representing restraining order defendants and one you feel confident will represent your interests without reservation. Call around. Having an attorney speak on your behalf is your best bet of arresting a biased process that stands to exert a very detrimental influence on your future. Some respondents to this blog have reported paying thousands to attorneys who they felt ultimately sided with the restraining order applicant. So choose an attorney you feel certain will have your back. A lawyer is no different from anyone else you employ to do a job for you: get one you have faith in.

“Am I breaking the law if I posted a comment on Facebook about my ex-girlfriend who got a restraining order against me…?”
Restraining orders are public record, so no. You would only have made yourself liable to police interference if your comment was threatening or to civil litigation if your comment was libelous—in other words, if you lied about your ex-girlfriend in a defamatory way. Truth is an absolute defense against allegations of libel or slander. Fact is fact. Opinion is also protected under the Constitution. Care should be taken, though, if you’re commenting on a restraining order that’s still in effect that you don’t make yourself vulnerable to allegations of harassment. A good rule of thumb is to imagine that everything you write will be read by a judge. A single comment isn’t harassment.

“Are charges filed against me public record?”
Yes. The plaintiff’s affidavit (written narrative to the court) is often concealed—even from the defendant; but the restraining order itself is publicly accessible, along with any allegations that appear on it (whether true or false).

“Are narcissists con artists?”
Yes, they’re consummate manipulators and frauds who don’t scruple about lying to realize their own ends, including to police officers and judges.

“Are no-contact orders public knowledge and if so where do you locate them?”
Records of restraining orders are public, yes. A courthouse website will usually have a database that you can search by name or case number. Note that restraining orders can issue from county or city courthouses.

“Are restraining orders being issued too freely?”
Yes, in all senses: they’re issued casually, and they cost their applicants little or nothing.

“Are restraining orders constitutional?”
There are certainly grounds for questioning their constitutionality. Provisions of the United States Constitution and state constitutions require that all citizens be given equal recognition under the law and that no group of citizens be shown special consideration, and preferential treatment both of women generally and plaintiffs specifically is not only prevalent but often mandated (for example, courts may be given grant monies in return for consenting to unquestioningly accept allegations of fear or violence from women as true). Restraining orders also deny recipients due process, a Constitutional privilege guaranteed by the Fifth, Sixth, and Fourteenth Amendments. They furthermore enable the courts to criminally sanction defendants (imprison them) without first affording them their constitutional entitlement to a trial by a jury of their peers. And almost all if not all restraining orders are issued ex parte, which means defendants are deprived of liberty (and often property) prior to being heard by the court. Some defendants, in fact, are never heard. Restraining orders are issued against them without the court’s ever knowing anything about them but their names.

“Are restraining orders hard to beat?”
Yes, because they can be based on testimony that’s impossible to discredit, for example, an emotional state. An allegation of fear, which may be all a plaintiff needs to persuade a judge to approve a restraining order, can’t be disproved. The only defense is to discredit the plaintiff by convincingly showing there are no objective grounds for fear or that s/he has an ulterior motive for alleging it. As painful as it may be, no matter how strained your finances, securing the representation of an attorney is critical to balancing the scales and insuring you at least get a fair shake in a restraining order appeal. Since restraining orders are obtained ex parte—that is, based solely on the word of the plaintiff—the notion that the scales of justice are balanced to begin with is ridiculous.

“Can a person who doesn’t own the house file a restraining order and make the person who owns the house move out?”
Yes. It’s a common motive among restraining order applicants.

“Can a police officer sue someone for making a false accusation?”
A police officer might have sufficient grounds to sue someone for making a false accusation against him or her, yes, especially if it was done publicly in a way that damaged the officer’s reputation or professional standing. A police officer couldn’t sue, though, for someone’s making false allegations against someone else. False reporting to a police officer is a misdemeanor crime that could only be prosecuted by the county/district attorney’s office.

“Can a restraining order become a public document without your knowledge?”
A restraining order is a public document.

“Can I be sued for libel if I write about my ex and don’t post his name?”
Qualifying grounds for suing someone for libel are that s/he lied about you publicly in a defamatory way. The key word here is lied.  If what you write about your ex is true, no matter how unflattering it might be, it isn’t libel. Truth is an absolute defense against allegations of libel/slander/defamation. If you are sued for libel, and you didn’t lie about the plaintiff, you may countersue for malicious prosecution/abuse of process and request damages. A caveat to consider, however, is that when someone does sue for libel, the burden falls upon the defendant (you) to prove that what s/he’s reported is accurate. Can someone file a libel suit against you? Sure. Under the circumstances specified though, it’s very unlikely you would be sued.

“Can I file a lawsuit against my ex-wife for taking out an order of protection on me and wrecking my reputation?”
If she lied, absolutely. The standard of proof of libel/defamation requires that you demonstrate she publicly made false statements of fact about you that harmed your name and respectability. The statute of limitation for libel/defamation is usually one year.

“Can I get an order of protection against someone who has one on me?”
Assuming you can persuade the court that you’re in need of protection, yes. And unless you’re asked, you’re not obligated to share that you’re under a court-ordered injunction yourself (which should have no bearing on your allegations, anyway). A restraining order in no way restricts your taking legal action against the plaintiff or reporting his or her misconduct to the police or the courts; it only forbids you from personally contacting or approaching the plaintiff. If you successfully petitioned for a protection order, you would still have to observe the injunction against you or risk arrest. The defendant on the restraining order you got would be identically restricted.

“Can I sue someone for mental anguish from attempting to get a restraining order?”
Yes. To make a compelling case, though, you’d have to see a counselor and doctor so the court had some third-party substantiation of your suffering. If it was merely an attempt and the duration of your suffering was brief, the sympathy you could expect would probably be scant. If you could show a pattern of conduct, you’d stand a better chance of prevailing in a lawsuit. If this pattern rose to a sufficient level of egregiousness, you could sue for intentional infliction of emotional distress.

“Can I sue someone who wrongfully filed a civil harassment suit?”
Yes. See also above. Torts for suits alleging malicious prosecution or abuse of process involving a restraining order are likely to be among these: malicious prosecution/abuse of process, defamation, false light, intentional infliction of emotional distress, and fraud (on you and/or the police and courts). Other torts may apply, such as those entailing invasion of privacy. See your local law library for a book of jury instructions (which will show you not only what torts may be alleged in your state but how those torts are defined and what you would need to prove to establish liability).

“Can my girlfriend get arrested for lying on a protective order?”
In theory, yes. In practice, no. Perjury, though a felony, is a crime in name only. The statute is seldom enforced and never in commonplace matters. The district prosecutor, if asked why, would shrug and say that if he prosecuted everyone who lied, there’d be no one outside of prison to caddy for him.

“Can someone get a restraining order against me for posting a blog?”
It would probably depend on how a judge perceived its intent. The courts generally consider blogs to be the equivalent of online diaries. If you haven’t contacted the person in question and repeatedly been told not to, you’re not vulnerable to an allegation of harassment. If you haven’t lied about the defendant, you’re also immune to allegations of libel or defamation. Unless you’re leaking state secrets, posting information or opinion is protected under the Constitution. Where a judge might take exception to your blog is if its intent is patently malicious or invades the privacy of the other person (or, in the case of warring parents, if it stands to injure the kids). If the gist of your blog is, “X did this” or “X did this to me, and I think s/he’s a dirtbag,” saying so is your First Amendment prerogative. In other words, it’s defensible. That said, restraining orders lacking any meritorious basis are awarded to petitioners routinely. “S/he posted a blog about me, and I feel threatened!” may strike some judge or other as sufficient grounds (particularly an older judge who thinks the Internet is a playground for perverts). A goodly percentage of restraining orders are obtained on the force of dramatic persuasion alone. Should someone be able to get a restraining order against you for posting a blog? Excluding the exceptional cases I’ve mentioned, no.

“Can someone write on Facebook about you if you have a restraining order against them?”
A restraining order doesn’t mean someone can’t talk or write about you. It just means s/he can’t talk or write to you. If what the defendant has written is patently harassing or taunting, you may have grounds for having the restraining order modified to forbid this kind of public expression. If, however, the defendant is reporting facts about the case, that’s his or her Constitutional right (as is his or her expressing an opinion about those facts). Restraining orders are matters of public record. If the defendant (or anyone else) lies about you publicly in a damaging way, you may sue him or her for defamation.
“Can you be prosecuted for lying to get a restraining order?”
Yes. If you lie about a material fact in a restraining order case (that is, one likely to influence a judge), you’re vulnerable to prosecution by the county/district attorney for felony perjury. You may also be prosecuted in civil court (sued) by the person you lie about (for defamation, false light, fraud, etc.).

“Can you be violated for a restraining order after it expires?”
Expired means no longer valid/effective. A possible exception would be if you violated the restraining order before it expired, and this was easily proved.

Advertisements

17 responses to “Restraining Order Q & A

    • Sorry I didn’t reply sooner, but I just saw your comment!
      To be honest I don’t know how I got listed on Yahoo News. I do know that I’ve had a lot of reporters and media contact me about my story and what I’m doing – so maybe that’s why I’m on there, I’m not sure. I also have a website that gets lots of hits and the person who donated it to me also added SEO so it’s on all the search engines. Google “SEO” – there’s info on the internet how you can do this yourself.

      Like

  1. What if I haven’t been served yet and it’s be over three months. I’ve even lived with the person after they filid. I have their original affidavit. Have Proof they lie. What steps should I take first

    Like

    • I was served the same day my ex-roommate filed. He even waited down the street so he could see the officer come & go!
      Why would you still live or go back to someone who, you said, lied about you in an affidavit?
      I’m not an attorney & can’t give legal advice so if I were you I’d contact one in your area for advice. My advice would be to stay as far away as you can from the person who did that to you!

      Like

      • Yea I know it’s all wrong in a lot of ways. I even moved out of state twice to get away from that person and went back because they told me there lawyer told them not to show up in court because they told them they lied on to the police about to get the protective order. And we should see if we could make it work. And like a dummy I went back. I was even sitting nectar to them when the constable called and ask if they had another place for me so they could serve me. And they told them they haven’t seen and didn’t know of where I was. … Only way I knew they have been trying to still serve me since February is I went online an happen to see that we had court on the 25 of this month. And that they have had just put on line that they have tried to serve me on the 28 which was couple days ago. And I called the courts yesterday and they all played like they didn’t know what I was talking about. One person even said that it wasn’t filed against me. And I was just with this person two weekends ago they came to my home pick me up and we went and did some grown folks stuff lol. But I moved again a week ago to try and get over all this. But now that I know there still trying to serve me I want to fight this to the end to show how much this person is not right and shouldn’t be allowed to even be on earth lol

        My first step should get a lawyer today or talk to one?

        Like

      • Yea I know it’s all wrong in a lot of ways. I even moved out of state twice to get away from that person and went back because they told me there lawyer told them not to show up in court because they told them they lied on to the police about to get the protective order. And we should see if we could make it work. And like a dummy I went back. I was even sitting nectar to them when the constable called and ask if they had another place for me so they could serve me. And they told them they haven’t seen and didn’t know of where I was. … Only way I knew they have been trying to still serve me since February is I went online an happen to see that we had court on the 25 of this month. And that they have had just put on line that they have tried to serve me on the 28 which was couple days ago. And I called the courts yesterday and they all played like they didn’t know what I was talking about. One person even said that it wasn’t filed against me. And I was just with this person two weekends ago they came to my home pick me up and we went and did some grown folks stuff lol. But I moved again a week ago to try and get over all this. But now that I know there still trying to serve me I want to fight this to the end to show now how much this person is not right and shouldn’t be allowed to even be on earth lol

        My first step should get a lawyer today or talk to one?

        Like

      • I would talk to a lawyer first. Maybe talk to a couple. Don’t be stupid like I was & hire the first one you talk to if you don’t feel good about him! Good luck & let me know what you find out.

        Like

  2. My ex-wife was hit with a restraining order after being charged with felony domestic violence in front of children, and failed to include either the indictment or the restraining order on the petition she filed a few months later. She later pleaded guilty to Misdemeanor Domestic Battery. Her PPO request is still being held in abeyance while custody issues are being sorted out in a separate petition.

    My question: does anyone know if someone can even file for a restraining order against someone who they themselves have been both charged with felony domestic violence for attacking? And would the deliberate withholding of that fact in the section on the official form submitted to the court be something that might warrant summary dismissal? Just curious. I have stacks of emails that contradict her claims, I’m confident, at least as much as I can be, in my preparation to rebut the holes in her reasoning and suspicious timing, expose her utterly deceptive claims, reveal how they are devoid of any meaningful context, and draw attention to her fraudulent statements on the form itself. That said, I would much rather find out that there might be a common-sense law somewhere that says, “no, you can’t pull that crap in here.”

    I live in Indiana. I have a lawyer, but he is so busy with other matters related to the custody petition that I was hoping to avoid bothering him. Besides, if someone answers my question on the internet, it must be true, right? 🙂 Thanks in advance for any help.

    Like

  3. I was victimized by false restraining orders four times in three years, all obtained by an individual in retaliation for exposing her online as a professional scam artist. This woman defrauded several people in our town, and we later learned that she’d been doing this for years. Her thefts (many thousands of dollars) were called “civil matters”, with the police not wanting to get involved, despite complaints from many people.

    She left our town, went to several domestic violence groups in different states over the next few years, lied, using DIFFERENT NAMES, told them that she and I had been domestic partners for TEN YEARS at my address (she was a housemate for two months, one of three, nothing more), and said that I had been abusive, was stalking her, etc. Without asking for one shred of evidence (even for her “ten year residency” with me) she was given lawyers, shoulders to cry on, housing, food, clothes, and other support. When her “helpers” eventually told her to move on, she’d tell them that she “saw me looking in her window in her safe house”, and the dopes would send her off to another safe house, and a new set of perks.

    I DID manage to get all of the false R.O.’s vacated, and a court ordered her to reimburse me for legal fees re: the last one, because the judge believed that she was lying. Odd thing is, she was never arrested, is still out there, scamming people as usual, (I still hear from new victims once in a while) and I’ll never see a penny of course.

    Like

  4. I’ve had a restraining order served on me based solely on malicious lies. I’m wondering if it would be wiser to sue for defamation or to spend the money to fight the restraining order? Within the order it says I was extremely viollent.

    Like

    • I would fight the restraining order first. It will be easier to sue your accuser after you get the restraining order dismissed.
      Find an attorney in your area you can trust & get legal advice from him.
      Good luck with this & keep fighting back against your accuser!

      Like

  5. I agreed to a protective order so that it could be taken off public record (they do that in my state). I regret doing so but my ex has family in law enforcement that is helping him. It seemed like my best option. But he is actually harassing me with phone calls, damage, to property, etc. He is also defacing my reputation to my former and future employers. I know we will go back to court soon but Im stopped caring because it was KILLING me. I know he is trying to get a reaction from me so that he can further ruin me. I plan to move and change my name etc. Hopefully PO arent that bad. I just now have to explain my life with certain jobs that do extensive backgrounds

    Like

  6. If someone lies claiming that I violated an order by calling, if I present my phone records which show I didn’t call them, will they be arrested or can I at least get the order vacated because the party is bound to abuse it further?
    Or will my phone records be ignored? (I plan to have the people at Verizon sign it and have it notarized. That makes it an affidavit, right?)

    Like

    • I doubt they’d be arrested – like they should be for lying! My accuser, in his own writing, lied & said I was calling him 20 times in one hour – I got my itemized phone bills & proved I NEVER called him 20 times in a full day even! Save everything you have & give copies to your attorney. I don’t think you’ll need it notorized but your attorney can advise you on that. Good luck & keep fighting back!

      Liked by 1 person

      • Thank you. If we could use the “gay marriage” method, then we can get these laws changed or modified. Meaning just as the proponents of gay marriage started in local government and had the local laws changed first. Once this was done, they then wanted states recognition. Now it is a question of the feds recognizing marriages in each state. It is a good tactic, we can have a quite groundswell and before we realize you’re going to be on the today show. Thanks again. And I’ll keep fighting.

        Liked by 1 person

  7. I’m currently going through one of these as well. Wife and I are expecting our first child. About a month ago, she was thrown on bed rest for blood pressure issues and I started to get stressed out because of the situation – her FMLA papers were messed up, and she wasn’t going to get paid for her bed rest time, meaning I had to pay 2 incomes worth of bills on just my income alone.

    Needless to say, my mother in law came over and the two of us got into a heated argument (shouting match) in the yard over her claims that “I had no right to be stressed, everything was about my wife and baby, etc”. So, she pulls my wife out of the house and communication between my wife and I stays good for the first two weeks, all the while her mom keeps coming over to the house unannounced and without permission, harassing me. I get a cease and desist letter drawn up and sent out, just to find out from my boss at work yesterday that they served a restraining order on me. She claims that I threatened to access her medical records, and steal the baby off the labor & delivery ward.

    For all intents and purposes, the wife is a ICU nurse – I’m an IT guy at the hospital.. we both know the seriousness of HIPAA privacy laws. Not only that, but my logins for the medical record software actually only grant me access to reset other user accounts, and not actually get into the records portion of the programs. As to the “stealing the baby from the L&D ward”, that’s near impossible to pull off. Only L&D staff can properly remove the security devices and bands we have in place. Not only that, but staff badge in/out access to doors in this location are disabled… you have to be buzzed in/out.

    All I can really do at this point is sit here and ask myself: What did I do to deserve this?

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s