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:

  1. Obtain a copy of the restraining order promptly.
  2. Attack the issue of legal jurisdiction, if appropriate.
  3. Move for a continuance (delay of hearing) if more time is needed.
  4. Consider the possible harmful effects of a continuance on child visitation and custody issues.
  5. Try to obtain a transcript of the hearing where the temporary restraining order was issued.
  6. Obtain law enforcement records of the incident, including any documentation of visible injury.
  7. Obtain a copy of the 911 call placed by the accuser, if available.
  8. Subpoena persons who witnessed the alleged incident.
  9. Consider the possible role of expert witnesses.
  10. Before issuing a subpoena for child witnesses, consider the possible harm of such an action.
  11. Obtain other relevant documents, including medical records.
  12. File a motion for the court to not accept any documents not previously provided to your attorney.
  13. Examine the accuser’s background for previous false allegations.
  14. Ask the court to take note of the timing of the accuser’s allegation, coinciding with a broader custody or visitation dispute.
  15. 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.
  16. Be aware how a restraining order can be used in a subsequent child custody determination, and may be used to impose supervised visitation.
  17. Address the temporary restraining order with urgency.

Reading:

John Paone. Representing Persons Falsely Accused of Domestic Violence. New Jersey Law Journal. July 7, 1997.

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