If you have been served with a restraining order, YOU NEED AN ATTORNEY, and it is very important and time-crucial that you accept this tough reality. If you don't live in reality now, after the 30 days have passed, or after the order is upheld in court, you will enter a much worse reality. That reality can sometimes be described as hell.

Someone (the Petitioner) can obtain a Family Abuse Prevention Act Order (FAPA) fairly easily, without you (the Respondent) knowing about it, until the police show up at your door. Hopefully they will give you ten or twenty minutes to get your stuff together, tell your kids you love them, and then leave your house. Hopefully you have alot of friends, because you are now going to need them to give you a place to live while you go through the emotionally devestating aftermath which involves you defending the restraining order, and if it is upheld, living under the thumb of this order for at least one year.

And if you have kids, and the order remains in place, good luck getting custody of them.  Your parenting time may be restricted and supervised.

The first thing you should do is contact an attorney like me, who is experienced in litigating contested restraining orders. When you meet with me, you hand me the restraining order papers and will probably begin the conversation by telling me how the affidavit he or she signed is full of lies. You probably wonder why I don't look suprised - don't I believe you? Isn't perjury a crime? Sometimes it takes me a few seconds to remember that unlike me, you haven't handled hundreds of these cases, and that the lies are about YOU.  It's funny, to read lies about myself like that would make me angry, yet we know that if you appear angry in court it makes you appear like an angry and abusive person. 

That's when I tell you that I see this alot, and that it comes down to proof and evidence, because the Judge has never met you two before, and can't possibly KNOW who is lying. The Judge has to go by certain things, and in the end probably has to decide WHO is telling the truth.  You have to give the Judge a break, they are not psychic.  You have to accept reality and pay an attorney money to represent you to ensure that your best case is put forward to help the Judge make the right decision.

How does a Judge make that decision? Well first, you have to understand two things that are very important. The first thing is understanding what the Judge's job is and what it is not.  The Judge is there to make the right decision, that is, whether or not the Petitioner has proven what they need to prove, to uphold the order.  The Judge's job is NOT to decide how the Petitioner should prove that.  The Judge will decide what evidence is admissible, and therefore used by him or her in making the final decision, ONLY if somebody offers the evidence and someone else objects to it.  The rules of evidence are not simple, sometimes evidence is allowed in only after certain steps are followed, which is called "laying the foundation" for the evidence.  If you want to object to evidence someone is offering, you have to state the basis for that objection. If you state the wrong basis, it probably won't stop it from coming into evidence and being used by the Judge to make the final decision.   Sometimes you may have a basis to object, but for strategic purposes, you may not want to object. 

Second, the level of proof that the Petitioner is required to present, that is, what the Judge has to believe, is only what is called the preponderance of the evidence.  What does that mean? Well, in a criminal case, the State is required to prove someone is guilty by a much higher standard, which is beyond a reasonable doubt.  This is pretty high, yet defendants are convicted all of the time.  This is because even that standard allows for some doubt.  Preponderance is a very low standard, which basically is equivilant to "more likely then not."

The preponderance standard is lower because it generally applies to "civil" cases, which are cases where you can't lose your freedom by being put in jail or on probation. Civil cases typically involve money.  However, if a restraining order is not contested by you, or if it is and you lose, you are suddenly very vulnerable to being arrested and prosecuted for contempt of court.  Contempt of Court charges can be brought by the District Attorney's Office. There are only a few things that the DA offices get involved in that are not strictly criminal, like child support enforcement, and this is one of them.

Why is that important? Because unlike a regular civil matter, or even a divorce, the entity prosecuting you has the State behind them with investigators, police officers, victim assistant groups, and other agencies, and you have nobody, except hopefully, a qualified experience attorney.

The irony of comparing criminal cases - where you are charged with a crime - to restraining orders - is that you rarely see a defendant represent themselves in a criminal case, even when they have been denied a court appointed attorney and have to borrow money to hire a private attorney like me.  Of course in a criminal case you can go right to jail, whereas in a restraining order you won't go to jail immediately - it's just that with an existing restraining order upon you your chances of going to jail compared to someone else have increased exponentially.  Further, the burden of proof is lower in a restraining order case, meaning it's easier for the Petitioner to win! 

So even though the Petitioner has to hire or otherwise obtain an attorney to represent them if you contest the restraining order, if they win, or if you don't contest it, watch you back.  Contesting a restraining order in court without a competent experienced attorney is gambling with your freedom. The rules for filing documents with the court, and getting evidence in front of the Judge, and for what exactly the Judge needs to consider are not just laid out as a set of rules.  You can easily win or lose a case based on a Judge ruling whether or not something is allowed into evidence.  I have seen that as  a trial attorney for over 12 years.  I've been doing this work full time for that long.  The Judge isn't allowed to help you out - they are obligated to make the right decision based on what they have to consider - but they are not going to tell you when something the other party offers into evidence should not be allowed in, that isn't their job. You need to hire an attorney whose job it is to protect your rights.  That's where I come in.  Please call me.