Defending Against Protective Orders

There is no reason not to defend yourself against a potential Order of Protection or Stalking No Contact Order. Often people agree to the Order from the Court just simply to stop the proceedings against them, however, this is most usually a mistake because the accused has nothing to lose if they go to hearing and lose or if they agree to the Order; the end result is the absolutely the same consequence: the Order gets entered and it remains on the accused criminal history. That being said, protective orders are very defendable at hearing, but only in one very specific circumstance wherein the person trying to obtain the Order agrees that if there are no violations of the Order for a specific time period then the Order will be vacated and removed from the accused criminal history should the accused even consider agreeing to a limited Order. The difference is that even if the accused wins at hearing it will remain on his criminal background if the Order is not vacated and even after hearing it is likely that the judge will not enter an Order vacating the previous Orders without an agreement beforehand and thus leaving the Order as a permanent smudge on the accused’s criminal background.

First you need to understand that the person trying to obtain the protective Order is legally called the “Petitioner” and the person who is subject to the Order is called the “Respondent.” In most situations the Respondent will not know that the Petitioner obtained the initial Order. The proceeding starts with the Petitioner filling a form called “Petition For Order of Protection” or “Petition for Stalking No Contact Order.” The Petitioner has the option of trying to file this petition on their own, or with the assistance of an attorney, or other legal advocate that may work in the courthouse. Once that form petition is filed the court will have a brief hearing. The judge will listen to the Petitioner’s argument without the Respondent being present and then determine if there are enough allegations to enter an Emergency Order. If the judge determines that there is enough alleged inappropriate behavior the Emergency Order will be given to the Petitioner, however it will not be in effect until the Respondent is served with a copy of the Order. These Emergency Orders are usually only in effect for 14 to 21 days, but again, there is not a violation of the Order until the Respondent is actually served with the notice. The judge will direct the Sherriff’s office to find and physically hand the Order to the Respondent. If the Sherriff is unable to locate the Respondent after several attempts the Court may order that service of the Order can be made by publication of the Emergency Order in a public forum such as a newspaper. Once service has been made, either by physically handing the documents to the Respondent or publishing the notice in a public forum, the Respondent has 7 days to enter their appearance with the court and pay the appropriate filling fee. Upon being served there will also be included a “Notice of Service.” The notice of service will also contain the Court location, date, time, and room for the initial appearance of both the Petitioner and the Respondent.

Once the Respondent has been served with the Emergency Order they will also get the notice of the next required Court appearance. Once there is service of the Order the Order is in effect and a violation of any conditions of that Order could lead to criminal charges. The Respondent, or their lawyer, will need to go to the Clerk’s office and pay for and file their appearance. If the Respondent does not appear after being served the Court will most likely enter a Default Plenary Order for two years and the Respondent will only have up to 30 days to try and vacate that Order and reinitiate Court proceedings. At the first Court appearance the Respondent has the right to start the discovery process. The discovery process includes filing various motions for production of evidence, interrogatories, requests to admit, motions to dismiss, motions to vacate, and all other relevant motions. The Judge will most likely continue the matter for 30 day continuances until all the discovery requests are completed. These continuances are called Interim Orders and the protective Order will most likely be in effect during these continuances. After the requests for the discovery materials are satisfied the Judge will set the case down for a hearing.

First, as a Respondent, you need to know that there is no right to a jury trial. These hearings are held before only the presiding Judge who will ultimately determine if the Petitioner has met their burden of proof by a preponderance of the evidence. Preponderance of the evidence is a very different standard than the criminal burden of proof beyond a reasonable doubt. Preponderance of the evidence simply means the greater weight of the evidence. For example, if you had 100 pennies on one side of a scale and 101 on the other the side that had the 101 pennies would win because it had the greater weight. At hearing it is the Petitioner’s burden to prove their case. This often proves problematic for a petitioner because all of the rules of evidence apply and the Court is required to hold people that represent themselves to the same standard as though they are a practicing attorney. The Petitioner will have to present their case first. This means that they will have to present witnesses, their evidence, and most likely testify on their own behalf. After the Petitioner presents their case the Respondent has an opportunity to present their case. There are so many cases of “He said / She said” that it becomes improbable to determine who is actually telling the truth. With years of experience, often through the cross examination of attorney David Olshansky, the Judge will rule that the Petitioner has not met their burden of proof. However, there are many times where the Respondent will have to testify and tell their side of the story, and call their own witnesses and present their own evidence. The rules of evidence are there for a reason; a good lawyer can keep things like hearsay and other evidence out of court. Phone records, email, text messages, and other social media actions are almost impossible to put into court without the proper foundations. Most people, including lawyers, ar unable to introduce certain types of evidence because they lack the knowledge of what is required to admit items into evidence.

If you have a pending Order entered against you: hire an attorney. Having a lawyer that knows the system, and knows the law, can only protect you. There are defenses to these causes of action and a skilled attorney can protect you.