A restraining order prohibits the person it is against from contact with the person who applied for the order. This means no personal contact, either by being in close physical proximity, by telephone, email or through a message from someone else. If the restraining order is obtained by fraudulent information, there are several ways to have the order rescinded.
The Victim Testifies.
The person that obtained the original restraining order can go into court and tell the judge the information provided to obtain the order was fraudulent. This method can be tricky because the person the order is against is not allowed to contact the victim to arrange such a court appearance. If however, the named victim takes it upon herself to contact the courts and request an appearance before a judge, it can be done. In some states, admitting to a judge or a law enforcement officer that lies were told to get the order, a charge can be brought against the alleged victim for false reporting to an officer of law.
Your Day in Court
Though many restraining orders are originally granted without the subject of the order being present, they are temporary orders. There will be a court date set, at which time the subject of the order can appear in court and testify as to why the order should not be allowed to continue. At this court hearing, the subject of the order will hear the evidence presented against him and will be allowed to testify, call witnesses and cross examine the witnesses against him. An attorney or the individual upon whom the restraining order was placed, will try to prove the information used to obtain the temporary order was false. If the judge agrees, the order will be rescinded.
Law Enforcement Conclusion
When law enforcement is alerted to a crime or possible crime, an investigation begins. Though an initial restraining order may be granted, the investigation could uncover evidence the information given to obtain that order was fraudulent. In this case, law enforcement officers can testify in court they do not believe the restraining order should remain in place.
Filing a false restraining order and abuse of the protection from abuse process has serious consequences on all levels. Every state maintains statutes designed to prevent in the first instance and punish after the fact abuse of restraining orders. A person considering possibly filing for a restraining order based on less than accurate claims needs to think closely about the consequences and penalties.
No matter the underlying motivation in seeking a restraining order against a person based on a false allegation, negative consequences result. The effects of that type of conduct include damage to the legal structure set up to defend and protect victims of domestic abuse and harassment. Additionally, an innocent person is subjected to judicial process based on false contentions in an affidavit for a restraining order.
The purpose of a restraining order is to protect a bona fide victim of abuse or harassment. Unfortunately, in an instance in which a restraining order is abused, the law and the courts take firm action in response to the misuse of the restraining order process.
Abuse of a retraining order process normally is not something immediately identified. Temporary restraining or protection from abuse orders nearly always issue based solely on a sworn statement from the person seeking the protective relief. Ultimately a hearing is conducted at which the subject of the restraining order presents evidence in the form of documents and witnesses to challenge the contentions underlying the application for a restraining. At this juncture, evidence is presented that identifies false information provided in support of a restraining order.
The laws from state to state vary slightly regarding available sanctions for abusing a restraining order. At a minimum the fraudulently obtained restraining order ends up dismissed by the court. A monetary fine also is a real possibility. Depending on the circumstances, a judge can make a referral for prosecution based on an allegation of criminal perjury.
If you feel you are the subject of a fraudulently obtained restraining order and or abuse of the restraining order process, consider retaining the services of an experienced and qualified attorney to represent your interests. Local and state bar associations maintain directories of attorneys in different practice areas. Contact information for these organizations is available through the American Bar Association:
American Bar Association 321 N. Clark St. Chicago, IL 60654-7598 312-988-5000 abanet.org
by: Candace Webb & Mike Broemmel