Protective orders are useful tools for people who legitimately need protection from another person; however, protective orders are frequently misused in an attempt to gain an advantage in a family law case.
Thus, a person can be caught off-guard by a protective order that was obtained with false allegations. The good news is, if you request a hearing, the person that obtained the Order will have to meet a higher burden of proof at that hearing than the lower standard required to initially obtain the order. The bad news is that the higher standard is still not very high. The evidentiary standard is a preponderance of the evidence, which means that the court must find that the allegations are more likely than not true.
So, what should you do if you have been served with a protective order?
Step 1: Contact Owens & Perkins
Step 2: STAY AWAY FROM THE PLAINTIFF (protected person)
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 protected person and you cannot contact him or her unless the Order specifically allows some type of contact such as phone or e-mail.
If the Order allows you to contact the protected person in some way, that is not a free pass to say anything you want. As you have seen on cop shows, anything you say can and will be used against you in a court of law. The provision allowing contact is generally only for parenting time, so any calls or e-mails should only be about the children.
To clarify, if you see the protected person 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 protected person to ask why he or she obtained the Order. Just stay away. If you come near the protected person, and he or she calls the police, you can be arrested on the spot 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 most 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 credible evidence to uphold it.
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 protected person, those things can and will be used at the hearing to prove the allegations against you.
No matter what the facts of your case are, it is best to contact an attorney before requesting a hearing. If you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at (480) 630-2464 or CLICK HERE to schedule your free 30 minute consultation.