It is important that you take an accusation of domestic violence seriously. The false accuser may use a restraining order as “proof” that you are an abusive individual in a subsequent child custody hearing. Or the accuser may be trying to harass or “teach you a lesson.”
Your legal defense strategy will depend on many factors, including:
- The relevant laws in your state.
- How strong your case is – what type of evidence your accuser has, and what evidence you have to prove your innocence.
- How much time you have to prepare your defense.
- How judges in your area handle this type of case.
- Anticipated legal tactics of the accuser.
- How much money you can spend for legal expenses.
Attorney John Paone of New Jersey recommends an aggressive approach in responding to a restraining order. He advises attorneys to follow these steps:
- Obtain a copy of the restraining order promptly.
- Attack the issue of legal jurisdiction, if appropriate.
- Move for a continuance (delay of hearing) if more time is needed.
- Consider the possible harmful effects of a continuance on child visitation and custody issues.
- Try to obtain a transcript of the hearing where the temporary restraining order was issued.
- Obtain law enforcement records of the incident, including any documentation of visible injury.
- Obtain a copy of the 911 call placed by the accuser, if available.
- Subpoena persons who witnessed the alleged incident.
- Consider the possible role of expert witnesses.
- Before issuing a subpoena for child witnesses, consider the possible harm of such an action.
- Obtain other relevant documents, including medical records.
- File a motion for the court to not accept any documents not previously provided to your attorney.
- Examine the accuser’s background for previous false allegations.
- Ask the court to take note of the timing of the accuser’s allegation, coinciding with a broader custody or visitation dispute.
- Identify times when the accuser attempted to meet with the accused while the restraining order was in effect – such actions reveal the accuser did not believe he or she was in any immediate danger.
- Be aware how a restraining order can be used in a subsequent child custody determination, and may be used to impose supervised visitation.
- Address the temporary restraining order with urgency.
John Paone. Representing Persons Falsely Accused of Domestic Violence. New Jersey Law Journal. July 7, 1997.
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