What can I do if someone placed a restraining order on me based on lies?
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.
A hearing is typically held in which the person requesting the restraining order must prove their need for the order by the greater weight of the eivdence. The person sought to be restrained (defendant) may present evidence to counter the allegations made. A motion may also be made to modify the terms of a restraining order that has been issued. I suggest contacting a local attorney who can review all of the facts and documents involved.
Please see the following KS statutes to determine applicablility:
60-903. Restraining order.
(a) No notice or bond required. A restraining order may issue without
notice or bond, except as provided in subsection (b) of K.S.A. 60-904, and
amendments thereto, but if it appears to the judge that a restraining order
may result in damage to the party restrained, a bond to secure payment of
any damages sustained may be required. An application for a restraining
order shall also be considered as an application for a temporary injunction
and either party may give notice of hearing thereon. The order shall remain
in force until the hearing on the application for a temporary injunction.
(b) Service. Where a restraining order is issued without notice it shall
be served upon each party restrained in the manner prescribed for personal
service of a summons.
60-910. Vacating or modifying order.
(a) Before final judgment. At any time before the judgment the party
restrained or enjoined may apply to the judge of the court in which the
action is brought, to vacate or modify the same. The application may be
made upon the petition and affidavits upon which the restraining order or
injunction is granted, or upon affidavits on the part of the party
restrained, with or without answer.
(b) After final judgment. Any interested party, including a party
subsequently acquiring an interest in the subject matter of the injunction,
may file a petition in the same action to have a judgment of permanent
injunction vacated or modified. The petition shall be verified, filed in
the court from which the judgment issued, and shall state that there has
been a change in conditions rendering the injunction unnecessary or
partially unnecessary and that petitioner's interests are being adversely
affected. The changed conditions shall be stated in reasonable detail. The
procedure pertaining to original civil actions shall be followed. If the
judge, after hearing, finds that the petition was not filed in good faith,
the judge shall assess the expenses and reasonable attorneys' fees against
the petitioner for those parties who have defended against the application,
the same to be collected as costs in the action.
The following KS statutes apply to domestic abuse:
60-3105. Emergency relief.
(a) When the court is unavailable, a verified petition, accompanied by a
proposed order, may be presented to any district judge. The judge may grant
relief in accordance with subsection (a)(1), (2), (4) or (5) of K.S.A.
60-3107 and amendments thereto, or any combination thereof, if the judge
deems it necessary to protect the plaintiff or minor child or children from
abuse. An emergency order pursuant to this subsection may be granted ex
parte. Immediate and present danger of abuse to the plaintiff or minor
child or children shall constitute good cause for the entry of the
emergency order.
(b) An emergency order issued under subsection (a) shall expire on 5:00
p.m. on the first day when the court resumes court business. At that time,
the plaintiff may seek a temporary order from the court.
(c) The judge shall note on the petition and any order granted, including
any documentation in support thereof, the filing date, together with the
judge's signature, and shall deliver them to the clerk of the court on the
next day of the resumption of business of the court.
60-3106. Hearings; temporary orders pending hearing, modification.
(a) Within 20 days of the filing of a petition under this act a hearing
shall be held at which the plaintiff must prove the allegation of abuse by
a preponderance of the evidence and the defendant shall have an opportunity
to present evidence on the defendant's behalf. Upon the filing of the
petition, the court shall set the case for hearing. At the hearing, the
court shall advise the parties of the right to be represented by counsel.
(b) Prior to the hearing on the petition and upon a finding of good cause
shown, the court on motion of a party may enter such temporary relief
orders in accordance with subsection (a)(1), (2), (4) or (5) of K.S.A.
60-3107 and amendments thereto, or any combination thereof, as it deems
necessary to protect the plaintiff or minor children from abuse. Temporary
orders may be granted ex parte. Immediate and present danger of abuse to
the plaintiff or minor children shall constitute good cause for purposes of
this section. No temporary order shall have the effect of modifying an
existing order granting legal custody, residency, visitation or parenting
time unless there is sworn testimony at a hearing to support a showing of
good cause.
(c) If a hearing under subsection (a) is continued, the court may make or
extend such temporary orders under subsection (b) as it deems necessary.
60-3107. Orders for relief of abuse, procedure; modifications; inconsistent
orders; violation of orders, criminal violations and penalties.
(a) The court may approve any consent agreement to bring about a
cessation of abuse of the plaintiff or minor children or grant any of the
following orders:
(1) Restraining the defendant from abusing, molesting or interfering with
the privacy or rights of the plaintiff or of any minor children of the
parties. Such order shall contain a statement that if such order is
violated, such violation may constitute assault as provided in K.S.A.
21-3408, and amendments thereto, battery as provided in K.S.A. 21-3412, and
amendments thereto, domestic battery as provided in K.S.A. 2005 Supp.
21-3412a, and amendments thereto and violation of a protective order as
provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto.
(2) Granting possession of the residence or household to the plaintiff to
the exclusion of the defendant, and further restraining the defendant from
entering or remaining upon or in such residence or household, subject to
the limitation of subsection (d). Such order shall contain a statement that
if such order is violated, such violation shall constitute criminal
trespass as provided in subsection (c) of K.S.A. 21-3721, and amendments
thereto, and violation of a protective order as provided in K.S.A. 2005
Supp. 21-3843, and amendments thereto. The court may grant an order, which
shall expire 60 days following the date of issuance, restraining the
defendant from cancelling utility service to the residence or household.
(3) Requiring defendant to provide suitable, alternate housing for the
plaintiff and any minor children of the parties.
(4) Awarding temporary custody and residency and establishing temporary
parenting time with regard to minor children.
(5) Ordering a law enforcement officer to evict the defendant from the
residence or household.
(6) Ordering support payments by a party for the support of a party's
minor child, if the party is the father or mother of the child, or the
plaintiff, if the plaintiff is married to the defendant. Such support
orders shall remain in effect until modified or dismissed by the court or
until expiration and shall be for a fixed period of time not to exceed one
year. On the motion of the plaintiff, the court may extend the effect of
such order for 12 months.
(7) Awarding costs and attorney fees to either party.
(8) Making provision for the possession of personal property of the
parties and ordering a law enforcement officer to assist in securing
possession of that property, if necessary.
(9) Requiring any person against whom an order is issued to seek
counseling to aid in the cessation of abuse.
(10) Ordering or restraining any other acts deemed necessary to promote
the safety of the plaintiff or of any minor children of the parties.
(b) No protection from abuse order shall be entered against the plaintiff
unless:
(1) The defendant properly files a written cross or counter petition
seeking such a protection order;
(2) the plaintiff had reasonable notice of the written cross or counter
petition by personal service as provided in subsection (d) of K.S.A.
60-3104, and amendments thereto; and
(3) the issuing court made specific findings of abuse against both the
plaintiff and the defendant and determined that both parties acted
primarily as aggressors and neither party acted primarily in self-defense.
(c) Any order entered under the protection from abuse act shall not be
subject to modification on ex parte application or on motion for temporary
orders in any action filed pursuant to K.S.A. 60-1601 et seq., or K.S.A.
38-1101 et seq., and amendments thereto. Orders previously issued in an
action filed pursuant to K.S.A. 60-1601 et seq., or K.S.A. 38-1101 et seq.,
and amendments thereto, shall be subject to modification under the
protection from abuse act only as to those matters subject to modification
by the terms of K.S.A. 60-1610 et seq., and amendments thereto, and on
sworn testimony to support a showing of good cause. Immediate and present
danger of abuse to the plaintiff or minor children shall constitute good
cause. If an action is filed pursuant to K.S.A. 60-1610 et seq., or K.S.A.
38-1101 et seq., and amendments thereto, during the pendency of a
proceeding filed under the protection from abuse act or while an order
issued under the protection from abuse act is in effect, the court, on
final hearing or on agreement of the parties, may issue final orders
authorized by K.S.A. 60-1610 and amendments thereto, that are inconsistent
with orders entered under the protection from abuse act. Any inconsistent
order entered pursuant to this subsection shall be specific in its terms,
reference the protection from abuse order and parts thereof being modified
and a copy thereof shall be filed in both actions. The court shall consider
whether the actions should be consolidated in accordance with K.S.A. 60-242
and amendments thereto.
(d) If the parties to an action under the protection from abuse act are
not married to each other and one party owns the residence or household,
the court shall not have the authority to grant possession of the residence
or household under subsection (a)(2) to the exclusion of the party who owns
it.
(e) Subject to the provisions of subsections (b), (c) and (d), a
protective order or approved consent agreement shall remain in effect until
modified or dismissed by the court and shall be for a fixed period of time
not to exceed one year, except that, on motion of the plaintiff, such
period may be extended for one additional year.
(f) The court may amend its order or agreement at any time upon motion
filed by either party.
(g) No order or agreement under the protection from abuse act shall in
any manner affect title to any real property.
(h) If a person enters or remains on premises or property violating an
order issued pursuant to subsection (a)(2), such violation shall constitute
criminal trespass as provided in subsection (c) of K.S.A. 21-3721, and
amendments thereto, and violation of a protective order as provided in
K.S.A. 2005 Supp. 21-3843, and amendments thereto. If a person abuses,
molests or interferes with the privacy or rights of another violating an
order issued pursuant to subsection (a)(1), such violation may constitute
assault as provided in K.S.A. 21-3408, and amendments thereto, battery as
provided in K.S.A. 21-3412, and amendments thereto, domestic battery as
provided in K.S.A. 2005 Supp. 21-3412a, and amendments thereto, and
violation of a protective order as provided in K.S.A. 2005 Supp. 21-3843,
and amendments thereto.
The following KS statutes apply to stalking:
60-31a05. Hearing; temporary orders pending hearing.
(a) Within 20 days of the filing of a petition under the protection from
stalking act a hearing shall be held at which the plaintiff must prove the
allegation of stalking by a preponderance of the evidence and the defendant
shall have an opportunity to present evidence on the defendant's behalf.
Upon the filing of the petition, the court shall set the case for hearing.
At the hearing, the court shall advise the parties of the right to be
represented by counsel.
(b) Prior to the hearing on the petition and upon a finding of good cause
shown, the court on motion of a party may enter such temporary relief
orders in accordance with K.S.A. 60-31a06 and amendments thereto, or any
combination thereof, as it deems necessary to protect the victim from being
stalked. Temporary orders may be granted ex parte on presentation of a
verified petition by the victim supporting a prima facie case of stalking.
(c) If a hearing under subsection (a) is continued, the court may make or
extend such temporary orders under subsection (b) as it deems necessary.
60-31a06. Orders; time periods; amendments; costs.
(a) The court may issue a protection from stalking order granting any of
the following orders:
(1) Restraining the defendant from following, harassing, telephoning,
contacting or otherwise communicating with the victim. Such order shall
contain a statement that if such order is violated such violation may
constitute stalking as provided in K.S.A. 21-3438, and amendments thereto,
and violation of a protective order as provided in K.S.A. 2005 Supp.
21-3843, and amendments thereto.
(2) Restraining the defendant from abusing, molesting or interfering with
the privacy rights of the victim. Such order shall contain a statement that
if such order is violated, such violation may constitute stalking as
provided in K.S.A. 21-3438, and amendments thereto, assault as provided in
K.S.A. 21-3408, and amendments thereto, battery as provided in K.S.A.
21-3412, and amendments thereto, and violation of a protective order as
provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto.
(3) Restraining the defendant from entering upon or in the victim's
residence or the immediate vicinity thereof. Such order shall contain a
statement that if such order is violated, such violation shall constitute
criminal trespass as provided in subsection (a)(1)(C) of K.S.A. 21-3721,
and amendments thereto, and violation of a protective order as provided in
K.S.A. 2005 Supp. 21-3843, and amendments thereto.
(4) Any other order deemed necessary by the court to carry out the
provisions of this act.
(b) A protection from stalking order shall remain in effect until
modified or dismissed by the court and shall be for a fixed period of time
not to exceed one year, except that, on motion of the plaintiff, such
period may be extended for one additional year. Before the expiration of an
order for protection from stalking, a victim, or a parent on behalf of the
victim, may request an extension of the protection from stalking order for
up to one additional year on showing of continuing threat of stalking.
(c) The court may amend its order at any time upon motion filed by either
party.
(d) The court shall assess costs against the defendant and may award
attorney fees to the victim in any case in which the court issues a
protection from stalking order pursuant to this act. The court may award
attorney fees to the defendant in any case where the court finds that the
petition to seek relief pursuant to this act is without merit.
