Individuals who are accused of domestic violence, stalking or another form of unwanted and repeated contact may have a restraining order issued against them. However, there are situations in which a restraining order is not appropriate because the person being accused is innocent.
About Restraining Orders
A restraining order is a court order in which a judge commands that a person cannot make contact with another, and must keep a certain distance from them at all times. Typically, this includes:
Visiting the victim's home
Showing up at their place of work
Going to other areas the victim frequents
Phone calls to the victim
Unfortunately, some people take out restraining orders against an innocent person to manipulate situations. If a romantic partner does not want to end the relationship and does not want their partner to claim custody of their children, they can file a restraining order. In these circumstances, it is crucial you attempt to remove the restraining order, because violating it can result in jail time and hefty fines. But, can restraining orders be removed?
How to Remove Restraining Orders
Typically, the accuser or the defendant can ask the court to lift the restraining order. This is done by filing a motion with the court, such as a Motion to Modify Conditions of Pretrial Release or a Motion to Lift Restraining Order. If the accuser agrees with the lifting, the order would be removed if they state they are not afraid of the defendant and are not anticipating violence.
Removing Restraining Orders in Cases of Domestic Violence
Removing restraining orders in cases of domestic violence is a complicated process. Results cannot be guaranteed, although you do stand your best chance with experienced legal representation.
Having the restraining order removed is even more complicated in cases of domestic abuse that involve sexual assault.
Typically, the victim named in the protective order will need to testify and give their consent. They may also need to prove that they are not being manipulated or coerced into having the protective orders removed.
Additionally, the defendant will often need to provide proof to the judge and court that circumstances have changed. This could be evidence that, for example, violence was triggered by drug or alcohol abuse by someone who has successfully completed a recovery program.
Even if all parties seek to have the original order removed, there is still no guarantee that the court hearing will result in the successful removal of a restraining order. If the judge believes the defendant is still a danger, having it removed becomes much more difficult.
Lifting the Restraining Order
However, if the accuser is opposed to lifting the restraining order, the motion will state the reasons why it should be lifted. Normally, there will be a hearing after the motion is filed and a judge will decide whether or not to remove the order.
The court hearing may still be necessary under certain circumstances if the accuser agrees to have it lifted. These circumstances may include:
any involvement of children
the person named is facing additional charges
The victim appears to be coerced into removing the restraining order
A prosecutor may conduct a cross examination on the accuser in many cases. This is when the expertise of a lawyer is especially vital. An innocent person may not understand the nuances involved if a judge believes the restraining order should remain. If the defendant served or is scheduled to serve jail time, that could also complicate the case.
If you are subject to a restraining order, you will face serious consequences if you violate it. As a result, it is crucial for you to contact and hire one of our experienced Wasilla domestic violence lawyers at Denali Law Group.
Call (907) 357-5297 or fill out our case evaluation form today.