An order of protection is a court order designed to protect someone from domestic abuse, stalking, or harassment. If you have been served with an order of protection, you may want to fight it if you believe the allegations against you are false or exaggerated. Getting an order of protection dismissed can be challenging, but it is possible in some cases. Here is an overview of how the process works and some tips for getting an order of protection dismissed.
Understanding Orders of Protection
Orders of protection, sometimes called restraining orders, can be issued in both civil and criminal court proceedings. Civil protection orders are typically requested by the alleged victim, while criminal protection orders may be requested by the prosecutor in a domestic violence or stalking case.
The standard of proof for obtaining a protection order is relatively low compared to what is required for a criminal conviction. The petitioner only has to establish their allegations by a “preponderance of evidence,” meaning it is more likely than not that the abuse occurred. This makes it easier for alleged victims to obtain orders of protection.
However, just because an order has been issued does not mean the allegations are 100% true. There are instances where protection orders are sought in bad faith, relied on false information, or were improperly issued by the court. Your first step is making sure you understand the exact allegations against you so you can start building your defense.
Drafting a Persuasive Motion to Dismiss
If you want to get an order of protection dismissed, you will need to draft and file a motion to dismiss with the court that issued the order. This written motion should:
– Clearly state the facts of your case and your reasons why the order should be dismissed. Focus on factual inaccuracies in the petition or instances where the order was improperly issued.
– Present evidence contradicting the allegations, such as emails, texts, photos, police reports, alibis, witnesses, etc.
– Cite relevant case law or statutes that support your position. For example, if the order was issued without allowing you to present your side, you could argue a violation of due process rights.
– Use a respectful, logical tone focused on the legal merits. Emotional language or personal attacks on the petitioner could hurt your chances.
Your motion will need to be properly served on the petitioner and comply with all legal filing requirements in your jurisdiction. Consider hiring an attorney experienced in protection order defense to assist with your motion.
Preparing for the Dismissal Hearing
The court will schedule a hearing to evaluate your motion to dismiss, which both you and the petitioner must attend. You will have a chance to present evidence and call witnesses to testify why the protection order should be dropped. Some tips for the hearing:
– Dress professionally and remain calm. Do not interrupt the judge or get into arguments with the petitioner.
– Stick to the facts and evidence that contradict the allegations or show the order was improperly issued. Focus on casting justifiable doubt on the petitioner’s claims.
– Bring copies of documents, recordings, or photos that help rebut the allegations. References these exhibits as you present your argument.
– Consider whether to testify on your own behalf or not. You have a Fifth Amendment right not to testify if you are facing related criminal charges.
– Ask any witnesses to appear and testify. If they will not appear voluntarily, request subpoenas from the court compelling their testimony.
If the judge ultimately agrees your evidence shows the order should not have been issued or the allegations are unfounded, the order of protection will be dismissed. However, be aware that dismissal is not guaranteed – you need to convince the court it is appropriate in your case.
Frequently Asked Questions
What happens if the order is dismissed?
If the order of protection is dismissed, there will no longer be any court-ordered restrictions on your contact with the petitioner. However, the petitioner may still be able to seek a new order against you if you have any further contact that could be considered harassing or threatening.
Can a protection order still show up on a background check?
Even if an order has been dismissed, it may still appear on certain criminal background checks. However, you can request the court records be updated to show the order was dismissed to help provide clarity to anyone reviewing your record.
What if new evidence comes to light after the dismissal?
If significant new evidence emerges later showing the dismissal was made in error, the petitioner may be able to file a new petition and seek another protection order against you. The prior dismissal does not permanently prohibit any protection order from being issued.
Is dismissal guaranteed if the petitioner doesn’t show up?
No. The court may still uphold the order of protection even if the petitioner fails to appear at the dismissal hearing if there is sufficient evidence already in the record supporting the need for the order. However, the petitioner’s absence can weaken their case.
What should I do if the judge doesn’t dismiss the order?
If your motion to dismiss is denied, you will need to continue following the restrictions in the protection order. Consult with an attorney to explore whether you have any grounds to appeal the judge’s decision to a higher court. However, appeals can be difficult.
Conclusion
Getting an order of protection dismissed requires being able to effectively refute or cast doubt on the allegations against you. With strong evidence and persuasive legal arguments, it is possible to meet the burden of proof required to have an improper or unfounded order dropped. However, the dismissal process can be complex, so working with an experienced attorney is key.