Leonardo Angiulo: What You Can Expect from a Restraining Order Hearing

Monday, August 13, 2012

Leonardo Angiulo, GoLocalWorcester Legal Expert

Leonardo Angiulo, GoLocalWorcester Legal Expert

As I discussed in a previous column, emergency restraining orders get issued based on one side of the story. Emergency restraining orders will typically include terms of staying away, having no contact, the temporary suspension of licenses to carry, temporary forfeiture of firearms and may even award temporary custody of children. As you can imagine, anyone who is a parent might be shocked when a single phone call in the middle of the night can keep them from seeing their children. Sometimes, after both sides of the story come out, the evidence does not support the continuation of the restraining order or some of its original parts.

When a person is served notice of an emergency restraining order, that same document will include the return date for the next hearing. Typically, the next hearing will be in ten days at the district court holding jurisdiction over the matter. On that date, if the party holding an order wants it continued they must appear and request it. This is when the party against whom the order has issued gets the chance to fight it. These hearings have short and long term effects on families and individuals. Given their importance, and that they are often a small piece of a larger issue, getting an attorney for these hearings can be very beneficial.

For example, sometimes the parties will share a child but will not have a probate court order dealing with custody and visitation. This hearing may be the first opportunity for a lawyer for either side to question the opposing party and gather important information through cross examination. The long term effects of restraining orders on probate court custody disputes will be discussed more fully in another column. For now, keep in mind that there are temporary custody determinations that can be made by judges of the district court.

It is also no secret that plaintiffs in restraining orders often allege criminal wrongdoing as the basis for the order. It follows, therefore, that any discussion of the facts underlying the restraining order is also about the criminal complaint. This can be a difficult situation for people who want to challenge the restraining order but do not have an attorney.

In order to challenge the restraining order, an unrepresented criminal defendant would have to waive their right to remain silent. This is complicated because it may be, but often is not, the right time for a criminal defendant to offer testimony. If the accused has an attorney at this stage, they can get advice tailored to their case on that topic. Of course, another benefit of having counsel for the accused is that this can be an opportunity for meaningful cross examination of the complaining witness.

One of the hallmarks of truthful testimony is consistency. Cross examination by a prepared attorney is helpful for the restraining order because if the court chooses to extend the order, there will be eventually be another hearing. In addition, this same testimony means that shortly after an incident an alleged victim in a criminal case, or opposing party in probate court, puts their story on the record under oath.

Over the life of a case, comparing and contrasting versions of a story can have a real impact on witness credibility. For that reason, cross examination at restraining order hearings is important for long term planning. It is also true that during the short term, having the opportunity to challenge witnesses at these hearings means a person can win modifications allowing them to see their children or even result in termination of the order all together.

Nothing in this article is meant to detract from the important role restraining orders play in protecting victims of abuse. What it is meant to discuss is how important these hearings are for people accused of wrong doing. No matter why an emergency restraining order is first issued, subsequent hearings are meaningful events and represent the constitutional right to due process.