Today I wanted to share with you some information about how to prepare for a restraining order, specifically a temporary restraining order hearing. If you happen to be the Plaintiff or the person who filed the restraining order, you would have to reverse some of the things I’m saying, but ultimately it would still apply.
With that being said, there are really three main things that anybody needs to do, and this is whether or not you have an attorney. If you don’t, it’s certainly more important, but even if you do, I think these tips are going to apply.
Become Familiar with the Law: TRO Hearing
First is to become familiar with the law. Now, there are always a lot of legal areas to any given case, so I don’t expect you to go out and study everything and learn everything, but you want to learn at least what the person who filed the restraining order needs to prove.
For instance, in New Jersey, they have to prove an act of domestic violence in Nutley occurred. There are ten or twelve different criminal aspects that are tracked into the restraining order statute that they can use to rely on, so it has to be one of those. You’ll want to first find out what has to be proven to establish any one of those twelve. They also need to prove that they need ongoing protection. Even if they prove the first 0aspect that there was an act committed, they still need to prove that they need ongoing protection.
You want to understand that and read what’s needed to prove each different criminal action, but you also need to find out what you may need to do to disprove that. I don’t mean just showing that’s not true; there’s issue about the burden of proof, which means how much evidence the Plaintiff or the person who filed needs to actually establish. You want to understand that. You want to know if it’s going to rise to that level of domestic violence or not. Even if an act did occur, it may not rise to that level, so you want to research what that really means to be able to use that.
There are things called contretemps in New Jersey, and probably in most jurisdictions. That really simply means people that fight with one another in relationships, that’s a contretemp. These are issues inside of a law where, even if the person is able to prove the act of domestic violence occurred and that they need the continuing protection, there still are ways to negate that.
Review the Case Facts
The second thing you need to do is review the facts of the case. First, read the complaint, the temporary restraining order that you got. Make sure that you understand what is being stated in there, especially if it’s detailed. You’re going to need to be able to see whether or not they actually mention all the allegations, whether they prove them, and you may need to illustrate that they’ve missed or overlooked certain factors.
You also want to check the dates and times. Then you want to go back to your calendar, your iPhone, or whatever it may be, and see if the dates actually match up. This is not just for their position, but also for your defense. You want to make sure that the dates you’re going to be talking about, that you’re familiar with what day of the week it was, what time of the day it was, and where you were beforehand.
This is probably the most important aspect because in domestic violence there’s often no other witnesses than the people that are involved. The judges will often have to go by credibility. They look at your body language, they look at your consistency, and they look at your believability. Being able to recall, “yes, this happened on the 23rd, it was a Monday afternoon, and I was at home” is very important, especially if the person who filed isn’t able to do that.
A lot of times these are heard long after they’re issued. People forget the dates, sometimes they’re either distraught or they’re confused, or it happens very late at night, so it gets filed technically the next day. It’s important that you know these dates and that you’re familiar with them when you get in there, so when you tell your story it’s consistent.
Be Comfortable Telling Your Story
Last is to practice telling your story. Don’t practice with somebody that’s very close to you, like your partner, your parent, or a really good friend. Go to somebody that’s really going to listen to your side of the story and tell you whether or not it makes sense. It’s important to have practice telling your story. It’s not just about defending yourself or telling the truth. Obviously, you want to tell the truth, but it’s about how you tell the truth.
Again, going back to what I said a moment ago, consistency, body language, and eye contact are all important, but it’s also got to make sense. The biggest mistake a lot of people make is to give a position that just doesn’t make sense, even if it’s the truth. You’ve got to be a little more objective. Again, I’m not saying to change your story, but I’ll give you an example. Say the other party alleges that you had this long drawn out fight, and you have this horrible history of fighting, name calling, and throwing things, and you had this blowout fight where the children were screamed at and you broke the phone and threatened the other party. You can’t go in there and say none of it ever happened, we’ve never had any problems, we’ve never had any fights, and I completely deny it.
Now, that may very well be true, and then that’s obviously what you have to say, but it’s probably not. It’s not likely that you’ve never had any problems. If you go in and completely deny something that is so either egregious or such a long history, it’s just not going to be believable. A judge needs to understand the reality of the situation. Because again, going back to what I said in the very beginning, it doesn’t just matter if you committed an act that’s complained of. That may be true, but it doesn’t mean they get a restraining order.
You don’t necessarily want to completely deny everything (unless it’s the truth), but you want to be a little objective. You may believe none of it is true because it’s exaggerated, but it’s just not going to be believable. You want to make sure that your story is believable and that it’s consistent with how a person might act under those circumstances.
For instance, I defended a case where I represented the husband. The allegation was that when the husband came home from work at 2 am, he threatened to kill his wife, took a knife, cut her hair, and then went to sleep. Our defense was that it just didn’t happen. That was a little risky of a defense; the allegation was so egregious you would think the judge would want to believe it, and more importantly, not want to send them home as husband and wife after it.
My argument was, it just doesn’t make sense. People don’t act like that. People don’t come home from work at two in the morning and all of a sudden threaten you and cut your hair off, and she still had her hair. It just didn’t make any sense. Like I said, it was a risky defense, but it was the only viable one because it was the truth. It was effective because it wasn’t true, and people don’t act like that.
You want to make sure that you understand the law, what they have to prove, and what you have to disprove. You want to understand the facts, both of their allegations and of your defense, and you want to make sure that it’s consistent and it makes sense with the actions of a reasonable person under the circumstances. In other words, that this would have likely happened.
I hope this information helps you if, unfortunately, you find yourself defending against a restraining order. There are videos I’ve done in the past along these lines on my YouTube page and my website, especially if you’re in a divorce and you have a restraining order hearing. It’s a much more significant issue if there are children involved. You can go to my website –The Micklin Law Group LLC or my YouTube page if you’d like to watch videos on this topic.
