Judges issue restraining orders to protect victims from further violence at the hands of an abuser. It is possible, however, that someone may apply for a restraining order against you that you feel is unjust. The legal system has a process in place that allows those who have had restraining orders issued against them to appeal the orders in court. The specific laws regarding appeals vary by state, but many elements are the same across the United States.
- Skill level:
- Moderately Challenging
Adhere carefully to every term of the restraining order. Even if you feel it is unjust and you intend to appeal it, it is still crucial that you abide by its terms; if you break any of the restraining order's specified rulings, you can be arrested, fined and even jailed. Also, breaking the terms of your restraining order can make the judge look less favourably at your case when you appeal it.
The judge may issue a temporary restraining order to protect the applicant until a full hearing can be held on a permanent order. Temporary restraining orders are issued after a hearing at which only the applicant is present, but a permanent restraining order will not be issued without you first being given the opportunity to present your side of the story at a full court hearing.
File paperwork with the court announcing your intention of appealing the restraining order. In many states, a hearing date is automatically set when a restraining order is issued; at this hearing, both parties have the opportunity to testify before a judge. When the temporary restraining order is issued, the respondent (the person against whom the order is issued) is "served" (notified) with the order, which also informs her of the date and time of the full hearing, typically within three weeks of the original application.
If a hearing date is not automatically set, you will usually receive paperwork to request a hearing when you are served. You then can complete this paperwork and submit it to the clerk at your county court. If you do not receive this paperwork, you can request it from the court clerk or find it online.
Assemble any evidence you may have, such as witness testimony or written communication with the person who is claiming you were abusive, that would support your case, to prepare to make your case in court.
Because appealing restraining orders can be quite difficult, it can be helpful for you to get a lawyer to help your case.
Attend the restraining order hearing. If you do not attend the hearing, it will usually become permanent and can last for a year or more. At the hearing, make your case to the judge. You need to be able to demonstrate that the restraining order is unjust or unnecessary.
If the court rules against you, and the restraining order is upheld, you only can appeal the restraining order by filing a motion to dismiss, if you believe due process was not followed in your case. Many states have restrictions on how long a restraining order must be in place before the respondent is allowed to appeal it again
In many states, when the restraining order is about to expire, another hearing will be held, if the applicant wishes to renew it. If so, you will again have the opportunity to appeal the restraining order.
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