22 Sep Defending Against an Order of Protection
Defending Yourself From a Protective Order
Known in pop culture as a “restraining order”, an Order of Protection in Missouri is used to keep one person away from another. The Order itself seems unassuming- it is an expedited procedure that is usually granted within a month and doesn’t require an Attorney to initiate. It isn’t criminal and no one goes to jail in the process of obtaining the Order. That doesn’t mean you should sit on your rights in a situation where you didn’t do anything. There are consequences. It is a crime to violate a Protective Order. It can impact a divorce case. It can impact future orders. It can establish custody, visitation, and support.
The Basic Law for an Order of Protection in Missouri
In its simplest form, an Order of Protection has two elements:
(1) The Party
(2) The Behavior
As for the Party, one of the following must be true: A Present or Former Family Member OR someone accused of stalking OR someone accused of sexual assault
As for the behavior, there must be an episode of domestic violence, stalking, or sexual assault.
The burden is a “preponderance of the evidence”. And that basically means 51%. If the Court believes it is more likely than not, then the Court will grant the restraining order.
Common Situations for a Protective Order
In my experience, there are two common situations where a Protective Order is sought: (1) The Petitioner is a victim of domestic violence or assault. A police report was filed and, in addition to the criminal case, the victim was advised to get a restraining order. The other situation (2) is when there is an allegation of stalking. The latter is by and far the most misused grounds for seeking a Protective Order and is misused most frequently when parties want to retaliate during a back and forth war of the words. Since stalking is the most commonly misused, it’s what I’ll focus on for the remaining of the article.
How to Fight the Restraining Order
As I stated earlier, it may seem like a “piece of paper”, but it has far-reaching consequences. If you feel like you are being wrongfully accused, then you should obtain Counsel and plan on fighting the case. In order to grant an Order of Protection, there must be a hearing. Based upon testimony of both parties and any evidence or witnesses offered, the Judge must decide if it is more likely than not that the stalking occurred. There are two main modes of defense:
(1) The actions never occurred. Is the petitioner lying altogether? This needs to be more than just he said/she said. If the petitioner is lying, then you need to show that to the Court. Depending upon the allegations, you could use phone records, establish an alibi, or have witnesses testify. You need to prove that you didn’t do it while simultaneously proving that the other party is lying.
(2) There was some kind of fighting or tension going on between the parties, but it didn’t rise to the level of one party stalking the other. When an Order of Protection is misused, this is generally how. The parties are fighting or having some type of negative back and forth. Both are involved, both are having their moments. One party decides that they have enough evidence to get a restraining order. Fortunately, the burden with stalking is high enough that these types of cases can usually be exposed at a hearing.
In order to qualify as stalking, the action must cause a reasonable person alarm, that is fear of physical harm, and include 2 or more separate acts that serve no purpose. The Courts have construed this narrowly on appeal. For instance, it can’t just be unwanted communication. In one case the “stalker” was trying to get the victim fired and would drive by the victim’s house at various times. That wasn’t stalking. There was another case that the appellate Court kicked out where the “stalker” sent repeated text messages about the victim testing dirty on a drug test and then stood outside her work filming her on his cell phone. That didn’t arise to stalking. It has to be more than just bad behavior- it has to cause a fear of physical harm.
Fight a Bad Case
If you’ve been served a notice of a hearing, the worst thing you can do is not to show up to Court. There is only a few minutes of testimony required from the petitioner to get a restraining order granted when the other party doesn’t show. If you want more information on fighting for your rights, call my office at 314-782-3500 or send an e-mail to harper@stlnextgenlaw.com.
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