In the heat of interpersonal and family strife, legal battles can get ugly. Judges often grant restraining orders to ensure the safety of people and property. However, judges don't always have all the necessary information and some make mistakes. When a temporary restraining order unfairly prevents someone from accessing his property or seeing his children, he may seek an appeal to overturn the restraining order.
- Skill level:
- Moderately Challenging
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Develop your arguments as to why the judge should overturn the restraining order. Focus on points of law and not personal emotions. Strong arguments bring to light information the judge didn't have when making the initial ruling, as well as issues of property and parental rights. For example, arguing that a restraining order unfairly interferes with your parenting rights, since you have no history of abuse or violence, may hold weight with a family court judge.
Gather evidence to submit with your motion. Look for facts that help a judge see how an order was erroneous. If a boyfriend gets a restraining order barring you from your home when, in fact, you are the owner of the house, documentation of ownership may change the court's mind. When the initial judge granted the order, she may not have known whose home it was, given that restraining orders don't require hearings with both parties present.
Obtain filing forms from the court clerk of the court of jurisdiction. Let the court clerk know that you aren't an attorney and will be filing your own appeal to overturn a restraining order. Ask the clerk to clarify any instructions or requirements that don't make sense to you. Clerks cannot give legal advice, but they can explain forms and how to use them.
Write your motion. Using professional language, begin by explaining the reasons for your motion. Typically, begin with the word "Whereas" and then go into the facts that bring you to the judge. It may go something like, "Whereas, on July 15, 2010, the Court ordered a restraining order against John Doe to stay at least 100 feet away from his residence at 10 Main Street; and, whereas, John Doe is the rightful owner of said property as evinced by title of ownership, John Doe respectfully requests the court to reverse its ruling." Complete all fields of the motion forms including signature and date.
File your motion with the court clerk of the court that ordered the restraining order. Have the appropriate filing fees ready. Some courts accept only checks or money orders, so review court fee requirements before visiting the clerk. Inform the court clerk of the urgency to remove the restraining order, as this may get you an earlier hearing date. Ask the clerk if the form looks complete before you depart.
Appear before the judge to discuss the motion. Answer her questions calmly, honestly and respectfully. Come prepared with all documents related to your case. Have notes to remind you of the major points of law.
Tips and warnings
- The process to overturn a temporary restraining order is essentially the same everywhere, but the laws pertaining to the reasons for a restraining order can differ widely. Arguments to overturn relate to the area of law for the case. Family law in Texas, for instance, may differ widely from Oregon. A person should know the correct arguments and scope of the law pertaining to his case in order to succeed. Make yourself familiar with court rules and procedures, which vary by state and county.
- This article is for informational purposes only and is not for the purpose of providing legal advice. Although a person can self-represent himself, a judge requires an individual to make the same cogent, persuasive arguments as an attorney. Additionally, if the other side has an attorney present, you may be at a distinct disadvantage due to lack of familiarity with statutory and case law. For these reasons, courts usually recommend using the services of an attorney.
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