I Was Served with a Protective Order, What do I do?
I Was Served with a Protective Order, What do I do?
Protective orders are useful tools for people who legitimately need protection from another person; however, protective orders are also frequently misused to gain an advantage in a family law case. Thus, the defendant is often caught off-guard by a protective order that was obtained with false allegations. The good news is that, if you request a hearing, the plaintiff will have to meet a higher burden of proof at that hearing than the low standard required to initially obtain the order. The bad news is that the higher standard is still not very high. The plaintiff will have to prove his or her case by a preponderance of the evidence, which means that the court finds that the allegations are more likely than not true. So, what should you do if you’re served with a protective order?
Step 1: Contact The Sander Law Firm
Step 2: STAY AWAY FROM THE PLAINTIFF
Read step two twice because it will keep you out of jail. Whether the accusations are true or not, you must stay away from the plaintiff and do not contact the plaintiff unless it is via a method specifically allowed in the order. If the order allows you to contact the plaintiff in some way, that is not a free pass to say anything you want. As you have seen on Cops, anything you say will be used against you in a court of law. The provision allowing contact is generally only for parenting time, so any messages should only be about the children.
To clarify, if you see the plaintiff in the grocery store, you need to leave immediately. Literally leave your basket full of groceries behind and get out of the store as fast as possible. Do not call the plaintiff to ask why he or she obtained this order. Just stay away. If you come near the plaintiff, and he or she calls the police, you will be arrested for violating the protective order.
Step 3: Determine whether you should request a hearing.
There are many things to consider when deciding if you should request a hearing on a protective order. The first thing you may want to consider is the credibility of the allegations. If the allegations are true, then they will more likely be proven at the hearing. Even if the allegations are not true, there are other considerations to weigh before requesting a hearing as there is still a chance that the order will remain in place after a hearing if the judge finds the plaintiff credible. Thus, you have to be mindful of how the case would look to an objective third party (the judge). If there have been angry text messages, e-mails, or phone calls between you and the plaintiff, those things may be used at the hearing to bolster the plaintiff’s allegations.
Effect on Family Law case
In some cases, the plaintiff was able to successfully include the parties’ children on the Order of Protection. That means that the defendant will be prohibited from being near his or her children, or contacting them for the duration of the order (1 year). In those cases, the reason to request a hearing is clear – you either win a hearing or you will not see your children for a year.
Even if your children are not included on the order, an Order of Protection may still have consequences in your Family Law case. First, co-parenting is difficult when there is an Order of Protection between the parents. Many times the defendant is permitted to contact the plaintiff, but only by e-mail or text and only about the children. Nonetheless, the Order of Protection makes parenting time exchanges more difficult as the parties cannot be in the presence of one another. Additionally, an Order of Protection is a finding of domestic violence, which may have a negative effect on your ability to be awarded legal decision-making authority for your children
Orders of Protection and gun ownership
If the protective order is an Order of Protection, and you lose at the hearing, you could be prohibited from possessing firearms, ammunition, and explosives for the duration of the order if the judge makes a finding that you pose a credible threat to the Plaintiff. There is a federal law that prohibits certain individuals from possessing firearms, including people who are subject to an Order of Protection. It is possible that the judge made a finding that you pose a credible threat to the plaintiff when the order was issued, and already prohibited you from possessing firearms. More often than not, you are not a prohibited possessor until you request a hearing and lose.
As a result of this federal law, many defendants choose to let the Order of Protection remain in place to avoid the risk of losing their gun rights. Avid gun enthusiasts and people who need to carry a gun for work (like security or police officers) are more likely to allow the order to stay in place and ensure they retain their gun rights. Others have to take their chances with the hearing because the plaintiff successfully added the defendant’s children to the Order of Protection
