Domestic violence is not pretty, especially when the results of abuse end in the issuance of a restraining order. The Domestic Violence Act provides the victim with specific rights. However, in some cases, a restraining order is assigned inappropriately, and the person is innocent of the charges.
The victim is required to approach Family Intake for a screening to decide whether the request for lifting the order is indeed made without duress. Counseling provides information so the victim can, if needed in the future, apply for another order. The theory is called the Cycle of Violence and has three phases, including tension building, a violent episode, and a remorseful stage. The parties must provide the court with a good cause or reasoning as to why the order should be vacated.
What Is a Good Cause?
- What is the health and age of the victim?
- Does the victim consent to lift the order?
- Does the victim fear the defendant?
- Is the relationship stable for contact at this time?
- Are any previous violations against the victim to be considered?
- Is there any alcohol or drug usage involved?
The judge considers these and other questions as part of the decision process before the court can deem that the two parties are in a workable situation.
File the Paperwork
If All Parties Are in Agreement: Paperwork will involve filing a Motion to Lift Restraining Order or a Motion to Modify Conditions of Pretrial Release and in most cases will include the names of both parties. The document will stipulate whether it is a voluntary action to remove the restraining order to ensure there is no anticipation of violence from either party. The type of contact allowed will also be listed in the motion.
If the Defendant Opposes: If there has been a change in circumstances, the defendant can the tell the court why the restraining order should be lifted. A hearing is usually held with a judge to determine if the order should be changed. If the case is a criminal case, a cross-examination can be held by the prosecutor directly with the victim.
The Court's Decision
The judge could apply conditions before the order is dismissed, including family counseling, anger management, and drug or alcohol counseling if those problems were a factor. If either party doesn't adhere to the judge's requirements, the restraining order can be reinstated.
If a restraining order is in place, the parties should not have any contact. All it takes is one phone call, and the party can be arrested for breaking the court order. For more information, contact a law firm such as Vandeventer Black LLP.