How do you defend your self against a restraining order?
Full Question:
Answer:
A restraining order is a temporary order of a court to preserve current conditions as they are until a hearing is held at which both parties are present. A restraining order may be issued in a divorce matter to prevent taking a child out of the county or to prohibit one of the parties from selling marital property. Also, a person who is a victim of harassment may seek a restraining order from the court. The person or guardian of a minor who is the victim of harassment may seek a restraining order on behalf of the minor. The restraining order prohibits harassment. A restraining order may be issued against an individual who has engaged in harassment, or against organizations which have sponsored or promoted harassment. The distance required to be maintained is governed by the language of each specific order, which may include places of work, school, etc. Temporary restraining orders typically expire on the hearing date, but local law should be consulted for specific requirements. Often the restrained person will ask for a mutual stay-away order.
Protective orders may be issued to prevent a disclosure in a legal proceeding that would prejudice the rights of a party, or prevent the legal process from being used to harass, embarrass, or cause someone undue burden or expense. Protective orders are civil orders issued by a judge to prevent one person from committing certain acts against others. The personal relationship between the “ respondent” (person alleged to commit the prohibited act) and the victim (person to be protected) determines which kind of petition would be filed. A protective order to is a method to help keep a victim of family abuse safe or stalking from further acts of violence or stalking. A permanent protective order will usually only be issued after a full hearing before the appropriate court. An Order For Protection is a court order that protects a victim from domestic abuse. Any family or household member may ask the court for an Order For Protection. Specific procedures vary by court, so local court rules need to be consulted. A protection order may address domestic abuse, direct or indirect contact with petitioner, stalking, evicting the respondent, housing for the petitioner when the respondent is the sole owner or lessee, temporary custody of minor children, financial support, or counseling.
Ex parte refers to a motion or petition by or for one party. An ex parte judicial proceeding is one where the opposing party has not received notice nor is present. This is an exception to the usual rule of court procedure and due process rights that both parties must be present at any argument before a judge. It is in contrast to the rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte hearings, petitions, or motions are usually temporary orders, such as a restraining order or temporary custody, pending a formal hearing or an emergency request for a continuance. Most jurisdictions require at least a good faith effort to notify the opposing lawyer of the time and place of any ex parte hearing.
The answer to your question may depend on the type and purpose of the restraining order you are referring to. A restraining order is a court document that is an order signed by a judge. Typically, civil court orders are not published in newspapers, but violations of criminal restraining orders will become part of one's legal record. The restraining order may expire by statute or remain in effect until vacated by the court. The order may or may not be issued ex parte, or without both parties to the order present. In certain cases, a judge may require testimony by both sides before issuing a restraining order.
The following are Connecticut statutes:
Sec. 46b-15. Relief from physical abuse by family or household member or
person in dating relationship. Application. Court orders. Duration. Copies.
Expedited hearing for violation of order. Other remedies.
(a) Any family or household member as defined in section 46b-38a who has
been subjected to a continuous threat of present physical pain or physical
injury by another family or household member or person in, or has recently
been in, a dating relationship who has been subjected to a continuous
threat of present physical pain or physical injury by the other person in
such relationship may make an application to the Superior Court for relief
under this section.
(b) The application form shall allow the applicant, at the applicant's
option, to indicate whether the respondent holds a permit to carry a pistol
or revolver or possesses one or more firearms. The application shall be
accompanied by an affidavit made under oath which includes a brief
statement of the conditions from which relief is sought. Upon receipt of
the application the court shall order that a hearing on the application be
held not later than fourteen days from the date of the order. The court, in
its discretion, may make such orders as it deems appropriate for the
protection of the applicant and such dependent children or other persons as
the court sees fit. Such order may include temporary child custody or
visitation rights and such relief may include but is not limited to an
order enjoining the respondent from (1) imposing any restraint upon the
person or liberty of the applicant; (2) threatening, harassing, assaulting,
molesting, sexually assaulting or attacking the applicant; or (3) entering
the family dwelling or the dwelling of the applicant. The court, in its
discretion, may make such orders as it deems appropriate for the protection
of any animal owned or kept by the applicant including, but not limited to,
an order enjoining the respondent from injuring or threatening to injure
such animal. If an applicant alleges an immediate and present physical
danger to the applicant, the court may issue an ex parte order granting
such relief as it deems appropriate. If a postponement of a hearing on the
application is requested by either party and granted, the order shall not
be continued except upon agreement of the parties or by order of the court
for good cause shown.
(c) Every order of the court made in accordance with this section shall
contain the following language: "This order may be extended by the court
beyond six months. In accordance with section 53a-107, entering or
remaining in a building or any other premises in violation of this order
constitutes criminal trespass in the first degree. This is a criminal
offense punishable by a term of imprisonment of not more than one year, a
fine of not more than two thousand dollars or both."
(d) No order of the court shall exceed six months, except that an order
may be extended by the court upon motion of the applicant for such
additional time as the court deems necessary. If the respondent has not
appeared upon the initial application, service of a motion to extend an
order may be made by first-class mail directed to the respondent at his or
her last known address.
(e) The applicant shall cause notice of the hearing pursuant to
subsection (b) of this section and a copy of the application and the
applicant's affidavit and of any ex parte order issued pursuant to
subsection (b) of this section to be served on the respondent not less
than five days before the hearing. The cost of such service shall be paid
for by the judicial branch. Upon the granting of an ex parte order, the
clerk of the court shall provide two certified copies of the order to the
applicant. Upon the granting of an order after notice and hearing, the
clerk of the court shall provide two certified copies of the order to the
applicant and a copy to the respondent. Every order of the court made in
accordance with this section after notice and hearing shall contain the
following language: "This court had jurisdiction over the parties and the
subject matter when it issued this protection order. Respondent was
afforded both notice and opportunity to be heard in the hearing that gave
rise to this order. Pursuant to the Violence Against Women Act of 1994,
18 USC 2265, this order is valid and enforceable in all fifty states,
any territory or possession of the United States, the District of
Columbia, the Commonwealth of Puerto Rico and tribal lands." Immediately
after making service on the respondent, the proper officer shall send or
cause to be sent, by facsimile or other means, a copy of the
application, or the information contained in such application, stating the
date and time the respondent was served, to the law enforcement agency or
agencies for the town in which the applicant resides, the town in which
the applicant is employed and the town in which the respondent resides.
The clerk of the court shall send, by facsimile or other means, a copy of
any ex parte order and of any order after notice and hearing, or the
information contained in any such order, to the law enforcement agency or
agencies for the town in which the applicant resides, the town in which
the applicant is employed and the town in which the respondent resides,
within forty-eight hours of the issuance of such order.
(f) A caretaker who is providing shelter in his or her residence to a
person sixty years or older shall not be enjoined from the full use and
enjoyment of his or her home and property. The Superior Court may make any
other appropriate order under the provisions of this section.
(g) When a motion for contempt is filed for violation of a restraining
order, there shall be an expedited hearing. Such hearing shall be held
within five court days of service of the motion on the respondent, provided
service on the respondent is made not less than twenty-four hours before
the hearing. If the court finds the respondent in contempt for violation of
an order, the court may impose such sanctions as the court deems
appropriate.
(h) An action under this section shall not preclude the applicant from
seeking any other civil or criminal relief.
Sec. 54-1k. Issuance of protective orders in stalking and harassment cases.
Upon the arrest of a person for a violation of section 53a-181c, 53a-181d
or 53a-181e, the court may issue a protective order pursuant to this
section. Upon the arrest of a person for a violation of section 53a-182b or
53a-183, the court may issue a protective order pursuant to this section if
it finds that such violation caused the victim to reasonably fear for his
or her physical safety. Such order shall be an order of the court, and the
clerk of the court shall cause a certified copy of such order to be sent to
the victim, and a copy of such order, or the information contained in such
order, to be sent by facsimile or other means within forty-eight hours of
its issuance to the appropriate law enforcement agency. A protective order
issued under this section may include provisions necessary to protect the
victim from threats, harassment, injury or intimidation by the defendant,
including but not limited to, an order enjoining the defendant from (1)
imposing any restraint upon the person or liberty of the victim, (2)
threatening, harassing, assaulting, molesting or sexually assaulting the
victim, or (3) entering the dwelling of the victim. A protective order
issued under this section may include provisions necessary to protect any
animal owned or kept by the victim including, but not limited to, an order
enjoining the defendant from injuring or threatening to injure such animal.
Such order shall be made a condition of the bail or release of the
defendant and shall contain the following language: "In accordance with
section 53a-223 of the Connecticut general statutes, any violation of this
order constitutes criminal violation of a protective order which is
punishable by a term of imprisonment of not more than five years, a fine of
not more than five thousand dollars, or both. Additionally, in accordance
with section 53a-107 of the Connecticut general statutes, entering or
remaining in a building or any other premises in violation of this order
constitutes criminal trespass in the first degree which is punishable by a
term of imprisonment of not more than one year, a fine of not more than two
thousand dollars, or both. Violation of this order also violates a
condition of your bail or release and may result in raising the amount of
bail or revoking release." The information contained in and concerning the
issuance of any protective order issued under this section shall be entered
in the registry of protective orders pursuant to section 51-5c.
Sec. 54-82q. Temporary restraining order prohibiting harassment of witness.
(a) Upon application of a prosecutorial official, a court may issue a
temporary restraining order prohibiting the harassment of a witness in a
criminal case if the court finds, from specific facts shown by affidavit or
verified complaint, that there are reasonable grounds to believe that
harassment of an identified witness in a criminal case exists or that such
order is necessary to prevent and restrain the commission of an offense
under section 53a-151 or 53a-151a.
(b) A temporary restraining order may be issued under this section
without written or oral notice to the adverse party or such party's
attorney if the court finds, upon written certification of facts by the
prosecutorial official, that such notice should not be required and that
there is a reasonable probability that the state will prevail on the
merits. A temporary restraining order shall set forth the reasons for the
issuance of such order, be specific in its terms and describe in
reasonable detail, and not by reference to the complaint or other
document, the act or acts being restrained.
(c) A temporary restraining order issued without notice under this
section shall be endorsed with the date and hour of issuance and be filed
forthwith in the office of the clerk of the court that issued the order.
(d) A temporary restraining order issued under this section shall expire
at such time as the court directs, not to exceed ten days from issuance.
The court, for good cause shown before expiration of the order, may extend
the expiration date of the order for not more than ten days or for a longer
period if agreed to by the adverse party. If the prosecutorial official
files an application for a protective order pursuant to section 54-82r
prior to the expiration date of the temporary restraining order, the
temporary restraining order shall remain in effect until the court makes a
decision on the issuance of such protective order.
(e) If, on two days' notice to the prosecutorial official or on such
shorter notice as the court may prescribe, the adverse party appears and
moves to dissolve or modify the temporary restraining order, the court
shall proceed to hear and determine such motion expeditiously.
(f) When a temporary restraining order is issued without notice, an
application for a protective order filed pursuant to section 54-82r shall
be privileged in assignment for hearing and shall take precedence over
all other matters except matters of the same character, and, if the
prosecutorial official does not proceed with such application at such
hearing, the temporary restraining order shall be dissolved.
Sec. 54-82r. Protective order prohibiting harassment of witness.
(a) Upon application of a prosecutorial official, a court may issue a
protective order prohibiting the harassment of a witness in a criminal
case if the court, after a hearing at which hearsay evidence shall be
admissible, finds by a preponderance of the evidence that harassment of
an identified witness in a criminal case exists or that such order is
necessary to prevent and restrain the commission of a violation of
section 53a-151 or 53a-151a. Any adverse party named in the complaint has
the right to present evidence and cross-examine witnesses at such
hearing. Such order shall be an order of the court, and the clerk of the
court shall cause a certified copy of such order to be sent to the
witness, and a copy of such order, or the information contained in such
order, to be sent by facsimile or other means within forty-eight hours of
its issuance to the appropriate law enforcement agency.
(b) A protective order shall set forth the reasons for the issuance of
such order, be specific in terms and describe in reasonable detail, and
not by reference to the complaint or other document, the act or acts
being restrained. A protective order issued under this section may
include provisions necessary to protect the witness from threats,
harassment, injury or intimidation by the adverse party including, but
not limited to, enjoining the adverse party from (1) imposing any
restraint upon the person or liberty of the witness, (2) threatening,
harassing, assaulting, molesting or sexually assaulting the witness, or
(3) entering the dwelling of the witness. Such order shall contain the
following language: "In accordance with section 53a-223 of the
Connecticut general statutes, any violation of this order constitutes
criminal violation of a protective order which is punishable by a term of
imprisonment of not more than five years, a fine of not more than five
thousand dollars, or both. Additionally, in accordance with section 53a-107
of the Connecticut general statutes, entering or remaining in a building
or any other premises in violation of this order constitutes criminal
trespass in the first degree which is punishable by a term of
imprisonment of not more than one year, a fine of not more than two
thousand dollars, or both." If the adverse party is the defendant in the
criminal case, such order shall be made a condition of the bail or
release of the defendant and shall also contain the following language:
"Violation of this order also violates a condition of your bail or
release and may result in raising the amount of bail or revoking
release."
(c) The protective order shall remain in effect for the duration of the
criminal case except as otherwise ordered by the court.