Greg Hession is an expert in restraining orders and fighting the good fight to stop the abuse.
Fighting the issuance of a restraining order is very difficult, but it can be done. THERE IS HOPE! This section will review the restraining order process, and some strategies and tactics that non-lawyers can use to possibly stop an order from being issued or extended.
The subject is legally and politically complex, and I have been reluctant to even talk about these things, lest the people who have learned how to get these orders wrongly, also learn how to stop you from stopping THEM.
These strategies and tactics suppose that the allegations against you are false or greatly exaggerated. In today's political climate, most of them are. If you are the victim of false allegations of abuse, this material should be of help. It won't guarantee success, however, and you should really consider getting a professional to help you, as you would with any specialized and difficult task.
First, Understand the Law
The restraining order law is perhaps the second most unconstitutional abomination in our legal system, after our so-called child protection (DSS) laws. The restraining order process is designed to allow an order to be issued very easily, and to be appealed, stopped, or vacated only with the utmost difficulty. It is the product of evil twisted minds, who have no respect for our traditional sense of justice or of the protections provided in our Massachusetts Constitution of due process of law. And they like it that way, thank you very much.
The motives for this law are legion. First, it makes the Commonwealth a bunch of money, by allowing it to leverage massive Federal grants. It makes feminist victim groups a lot of money by providing millions in state and federal grants to stop 'domestic violence.' It makes a lawyers and court personnel a lot money as they administer the Godzilla-sized system they have built to deal with these orders. It makes police a lot of money, as they are able to leverage huge grants for arrests of violators. It makes mental health professionals a lot of money, dealing with the mandatory therapy always required in these situations. It makes thousands of social workers a lot of money providing social services for all the families that the law destroys. It makes dozens of mens batterers programs a lot of money, providing anger management treatment, ordered by courts in these proceedings.
Hmmmm. . . Do we see a pattern here? A common thread?
Not only is the almighty dollar a motive, but so is the desire by the doctinaire Marxists who run the system to destroy our limited constitutional government and override the rights preserved by our Massachusetts Declaration of Rights.
In thousands of ten minute hearings held all over the Commonwealth, judges are now able to do what the Marxists have only dreamed of doing before now, and could never hope to do before they were able to use the pretext of 'domestic violence.' However, the real violence is almost always to the rights of the defendant, and to the Constitution itself, just as the elites intended.
Continuing on the theme of power, look who gains by the imposition of this hideous law. Feminist groups gain huge political power. Angry, manipulative women can use an order to remove a spouse for a variety of reasons - want a new boyfriend, don't want to go through the tedious custody process to get kids, want freedom, want child support, want vengeance, etc. The anti-gun wackos can disarm a huge chunk of the populace without the inconvenience of legislation. The pro-tax crowd can clamor for more money 'for the children'. The educrats can enhance their power by denying school records to anyone with a restraining order. The offense to families by this law is truly frightening.
In restraining order hearings, judges may ignore ALL traditional due process protections such as jury trials, the rules of evidence, the right to innocent until proven guilty, etc. They may also usurp several other dearly held rights, such as the right to be with one's children, to occupy one's own home and property, or travel where one pleases. No one has yet come up with so demonic a perversion of our legal system to match the breathtaking scope of the unconstitutional deprivations of this law.
What is the actual legal basis for getting an abuse restraining order? Many courts issue restraining orders without following the requirements of the law (which are already so flimsy as to be a mockery.) If a person comes in to court (called the ‘complainant' or ‘plaintiff') and whines about feeling ‘fear', a court will often issue an order, even though many times it is improper and illegal to do it.
So, what does a person actually have to prove to get an order legitimately?
The law states that the court can issue an order to protect a complainant from "abuse". Abuse is defined in Massachusetts General Laws, (M.G.L.) Chapter 209A Section 1. Here is the relevant part, defining abuse:
The occurrence of one or more of the following acts between family or household members:
attempting to cause or causing physical harm;
placing another in fear of imminent serious physical harm;
causing another to engage involuntarily in sexual relations by force, threat or duress.
The clause which is most misused is (b) above, "placing another in fear of imminent serious physical harm." Often a mere allegation of fear, without showing a factual basis for that fear, is enough for a court to issue an order.
What does the law require to properly issue an order? First the harm has to be ‘imminent', that is immediate, right there, right now. Not a vague threat to do something some day. Not a phone call from a far location. Next, it has to be ‘serious'. The attorney general, on a ballot referendum to overturn some recent changes to the domestic violence laws, defined ‘serious bodily injury' as follows:
"Injury that results in a permanent disfigurement; long-term loss or impairment of a bodily function, arm, leg, or organ; or substantial risk of death."
Lastly, the fear has to be of ‘physical' harm, not emotional harm, psychic harm, hurt feelings, or any number of other non-physical issues that people commonly get orders for.
If courts went by this definition strictly, fewer frivolous orders would be issued. However, as you likely know, judges often issue an order if they feel it should be issued, regardless of the law's requirements.
Understanding the Restraining Order Process
There is only one type of order that is issued under Massachusetts Gen. Laws Chapter 209A, with a lot of variable terms. They can be 'no contact' orders, or 'no abuse' orders. If they contain a no contact provision, they give a distance that the defendant must stay away, such as 100 yards.
Any violation of that order can be punished as a crime, but that material is not in this section. There is always controversy over whether incidental contact is a violation, such as running into the person at the grocery store. Of course, the radical feminists scream shrilly that it is, but the issue is somewhat unclear. The DAs have a firm policy to prosecute every violation of an order, no matter how small. One aside to the wise - NEVER plead out. Take the jury trial, unless you really intentionally violated the order.
Orders can also be obtained by parents on behalf of children, or make orders restricting access to the children or their school records. Recent changes to the law have tightened this up, and prohibit records to be released unless allowed by a judge. Even then, most schools treat innocent restraining order defendants like ax murderers, and often refuse to let a caring parent be involved in a child's education. One more clear evidence that this is not about protection, but family destruction.
Another undesirable side affect of restraining orders is an automatic deprivation of your protected right to carry arms. The anti-gun nuts are ebullient over this, because they can disarm thousands with ease. One bright spot is that a federal circuit court in Texas has shot down (sorry) that rule, although it does not apply in this area, and may never, unless the Supreme Court makes a ruling.
If you think an order may be coming, get your guns to a friend, pronto, or the local police will steal them, and dispose of them.
Restraining Orders are issued by both Probate and Family Courts and District Courts. Further, the standards appear to be quite different between 1) the initial order obtained without the other person there, called an ex parte, or one party order; 2) the order obtained when the defendant is allowed to be there; 3) Renewal of an existing order, usually after six months or a year; and 4) a permanent order.
Initial ex parte orders
The worst feature of the restraining order law is that it allows a person to go to court and get an order, without the other person present. That means that any lie will do, since no one is there to rebut it. As a consequence, without any input in the matter, a person can lose their children, their home, their money, their guns, and their freedom. This is crueler tyranny than any civilized land has ever tolerated, and approximates the tactics of one Vladimir Ulyanov, aka Lenin, during the Bolshevik Revolution.
Upon issuance, the police serve the order, boot the poor sap out of his house with barely a shirt on his back, pry his weeping children from his legs, steal his guns, and take him to jail if he isn't terribly pleased to do as he is told.
What more can be said? Any liar can get an order by merely asserting fear. The only hope is to stop it at the return hearing.
When the court issues an ex parte order, it sets up another hearing in about two weeks, with notice to the defendant, where he can come and argue his case. This is called a "return" day.
Many people do not realize how important this hearing is. Once it is held, usually for a pitiful few minutes, the order is rigidly set in stone for life. Courts do not warn defendants of the vast consequences of this hearing, and they are usually conducted quickly, without the niceties of constitutional protection in place.
If there was ever a time to get a lawyer, this is it. At any cost. Get one who will fight like your entire future depends on it, because it does. If you lose, you may never see your children again as long as you live. Yes, I have a case where six years have elapsed, and still no opportunity to have an actual hearing on the merits of the lying plaintiff's claim.
Why not go to the District Attorney, then, and charge the person with perjury. Well, they have covered that angle too, just like a diabolical plot to shut off every possible means of escape. The DAs will almost never prosecute perjury.
If you are fortunate to get the judge to vacate the order at this first hearing, fall on your knees and thank God. You and your family have been spared untold horrors.
Renewal of Orders
If you are not so fortunate, and the judge issues an order, it will have a renewal date on it, usually a year later. The court will refuse to give you notice, and it will be easy to forget that date. This is yet another way that the deck is stacked against defendants.
Courts seem to automatically renew these orders, if the complainant wants one. You could have been perfect in obeying it, and it doesn't matter. If the person still wants it, it is issued, without any further evidence. Another of the many unconstitutional anomolies in the restraining order law.
After the proud owner of a restraining order doesn't want to go to the trouble of renewing it year after year, the court will usually graciously oblige, and issue a permanent order. You have no where to go then. There is no way out, except to file an appeal, which is usually fruitless.
What About Appeals?
To appeal a restraining order, one must file an appeal with the Massachusetts Appeals Court, in Boston. It is a very difficult and time consuming project, ofter going past the renewal date, and costing thousands of dollars. Most people cannot do their own appeal, thanks to the always reliably complicated rules put out by the Pharisees who run the "justice" system.
However, if you do not appeal the INITIAL order, fuhgetaboutit, as they say in New York. You basically lose your right to challenge the issuance of the order - forever.
That means that a restraining order that costs the plaintiff nothing, issued after a 5 minute hearing, can only be challenged by a laborious, year long process of appeal that usually costs at least five thousand, if not ten thousand dollars. Most do not succeed. You can appeal subsequent orders, but they succeed even less frequently. Justice, where are you?
District Court v. Probate Court
Restraining orders are issued by both District Courts and Probate and Family Courts. There are a lot of subtle, tricky, details that get involved here, particularly if there is a divorce or paternity action in the Probate Court, but the restraining order is in the District Court.
Most restraining orders are issued by the District Court. If a divorce or paternity follows soon after, the Probate Court can either take jurisdiction over the order, or leave it in District Court. Some Probate judges will, and some won't. Further, some District Court judges don't want to touch the things once there is an action in Probate. This leads to a situation sometimes where no one wants to mess with it. Obviously, that bodes ill for the defendant getting a fair hearing, if everyone is irritated about the trouble.
Wherever your order lands, is where you must fight it. It doesn't matter much what court it is in - the biggest factor is whether you have a judge who believes the traditional concepts of justice and fair play, or some Commie hack who got her job by bribing the governor. I fear there are far more of the later than the former.
Now that you have absorbed the dreadful reality about these orders, you are in better position to understand with a sober mind, that fighting them is not easy, and never a sure thing. This material can help equip you to fight with a lot more savvy than most, but the prospects are still daunting. However, there is hope, and you should do all you can to strive against this evil, while pushing and praying for a change in the law itself.
Basic Techniques to Oppose Restraining Orders
How to Get Started - First, Get the Needed Information
The first step you must take to defend yourself against this deadly restraining order is to get a secret application and affidavit that the plaintiff filed at the ex parte hearing. The court will not tell you that these documents exist, so you must go to the clerk in the court where your order was issued, and ask for two things: the "application" for the restraining order and the "affidavit" that the complainant filled out.
The application will have statements on it as to why the person wanted the order. An 'affidavit' is a statement in writing, made under oath, of the facts supporting the application. Usually, they are both full of perjury, exaggeration, and down right lies.
When you go to the court to get them, give the clerk the "docket number", which is the case number on your order, and ask for the two documents. The clerk at the court may give you grief, but you are entitled to those documents. They are a public record, and even if they were not, you are a party to the case, so you should get them on that ground. You will have to pay a stinking 50 cent fee per page, but it will be well worth it.
Strategy Number One - Expose The Lies in the Application and Affidavit
The first critical strategy to use in every case, without exception, is to see if there are indeed lies in the papers which you got from the court. Even if not, you have the other strategies set forth below. However, this is just about the best one, because it exposes the tendency of the complaining witness to not tell the truth under oath. That bothers judges a great deal.
How do you do this? Look for factual impossibilities, and objectively PROVABLE untruths. One affidavit said that a defendant threatened to blow up the world. C'mon. And yes, the order was issued.
Some common lies involve times, distances, and places.
For example, if you are accused of doing something while you were actually at work, and you have a time card to prove it, that is devastating. Perhaps an allegation puts you home far sooner than you could have been there, and you were somewhere else, and can prove it with a credit card receipt for gas.
Phone records can often disprove false allegations. Cell phones keep records of all calls in and out, unlike residential phones. Even so, a phone bill showing you were calling from one place, instead of the one where you are accused of being, can absolutely shut down the whole scheme to accuse you.
The basis for many restraining order complaints are threatening phone calls. If that is your situation, then see if your bills tell a different story.
Email can also provide verification of your whereabouts when you were supposedly abusing the person.
Neighbors, friends, co-workers can be brought in as witnesses, to state that you were in a place far away, not abusing. Or, if the neighbor was standing there, witnessing the complainant beating you up, while you stood silently and didn't lift a hand, that can also turn it around.
When the person complains of injuries, were there medical records, or wounds? If it was alleged to be severe, and no one sought treatment, that may put the lie to the allegations.
If the plaintiff falsely complains that you were all likkered up or on drugs, and proceeded to act violently, you can usually find people to refute that allegation. A minister or a family member, who would know such things, can help.
If you are in a situation where no one witnessed the situation, there were no phone calls, and you have no alibi, don't give up. Keep looking for some objective proof that will show the person is not telling the truth. If no such thing can be found, you should still bring out the lies at the hearing, but rely more heavily on some of the other strategies below.
Strategy Number Two - Show How the Affidavit Fails to Meet the Legal Standard
This strategy, along with the one above, are the two most important ones. You can rarely win unless you have strong proof in these two areas. The other strategies are important for backing up your case, but these two are indispensible.
The argument about the legal standard is rarely even made by lawyers, even though it is absolutely critical. The judge has be be shown that you did not place the plaintiff in fear of imminent, serious, physical harm. The plaintiff has to prove each of these requirements - imminent, serious, and physical - and you should try to disprove each, even though the burden of proof is on the plaintiff.
This can be done by showing that the statements in the documents, as written, don't even rise to the level of that standard. Inspect these two documents slowly and carefully, phrase by phrase, and compare the statements in them to the law quoted above. Does the person allege imminent harm? Serious harm? Physical harm? If not, you have a line of attack. Many complaining witnesses only allege fear or some vague psychic dread. That does not meet the standard (despite the fact that judges give them out anyway.)
The point is to be very exacting, and look for evidence on each of these issues, and make notes as to questions you could ask the witness to bring out any inconsistencies. For example, if the person alleges fear that something physical MAY happen, that is clearly not 'imminent'. If the person alleges that you make them 'uncomfortable', that is clearly not physical. If the person alleges that you gave her a pat on the butt, that is clearly not 'serious'.
Strategy Number Three - Be Prepared for Some New Lies
At the hearing, you will use information and the documents to expose the plaintiff's lies, but you will also likely find that you have to deal with a new set of lies at the hearing, that is, what the plaintiff may say in addition to the documents. Once the complainant finds that you have studied the documents, and caught the person in lies, suddenly (and this almost always happens, so be ready) the plaintiff comes up with more information about what an abuser you are. So, don't be surprised; be prepared. Figure out in advance where the person is likely to shift ground, and be ready.
This also cuts both ways, sometimes in your favor. When a person comes up with new evidence of your abuse at a hearing, that were not in the affidavit, You can then question why, if these things were important, or even true, that they should have been included on the original papers. You argue that this is an attempt to lie to cover up the previous lies. Anything that would have helped the plaintiff's case WOULD HAVE been in there, and the judge probably knows it. So, bore in on it, and ask why this new lie wasn't in the affidavit.
The Role of the Victim Witness Advocate or Feminist Lawyer
Note that each court now has a victim witness advocate, paid by your taxes, who helps WOMEN (only) to prepare these affidavits to conform with the requirements of the law. Also, any good member of the feminist cabal of lawyers will also have helped her client to fill out the paperwork properly. Commonly, DSS agents also coerce WOMEN to lie to get orders, and help them fill out the paperwork, in order to pump up their domestic violence statistics, since they now have a separate domestic violence department that must be fed its compliment of sacrificial men each day. These are the forces arrayed against you, make no mistake.
Often, the WOMEN'S victim shelter, therapy, a car, money, freedom, and a whole lot more are riding on the WOMAN being willing to get an order, whether it is built upon a lie or not. Since more money comes from more victims, more victims must be found. No one ever tallies up the cost to the poor children who are traumatized by these false allegations, and given therapy to learn how to make proper 'disclosures' against the batterer.
Figure Out Your Opponent's Motive, Then Your Strategy
The most important strategies to use in opposing an order are the ones described above. At the return hearing, you will be allowed to cross examine the plaintiff about all these things. However, there is another critical strategy or tool for you to use to undermine the credibility of the plaintiff. That is to show the judge that there is a plausible motive, other than fear of harm, that has motivated the person to seek an order.
Such an allegation of an ulterior motive has to be provable to really work, not just a he-said/she-said situation, or the judge will almost always believe the one who wants the order. You need documents, witness testimony from a best friend, or some objective way to prove the bad motive.
Let's look at some of the wrong motives:
Ulterior Motive Chart
This is a list of possible ulterior motives for which the ‘victim' may have sought a 209A restraining order against you:
1. To gain an advantage in a divorce; (Some divorce lawyers routinely advise getting one.)
2. To quickly get custody of your children without a hearing;
3. To keep you from your children;
4. To stop you from modifying custody after your child expresses a desire to live with you.
5. To quickly put you out of the house without an eviction or a Probate Court hearing;
6. To allow the complainant to get a new boy/girlfriend into the picture, and you out;
7. To get vengeance;
8. To control or manipulate you, or get leverage in some way;
9. The ‘victim' got sucked in by a victim-witness advocate who preyed on weakness;
10. To put you in jail;
11. To enjoy watching you suffer.
12. To get $$$$$$ and help from DSS or a victim group.
In order to successfully pursue this strategy, You must figure out which of these motives are behind the push for a restraining order against you. Then you must be able to bring some document or witness that will prove pretty strongly that the motive you allege is the REAL reason why the person is seeking the order. This is discussed more below in the "hearing' section.
Dealing with ulterior motives also has another critical strategic advantage. It allows you to anticipate what the person may try to do to you before it comes about, and head it off. So, you must. . .
Think Ahead, Rather Than React
For example, in Number 4 above, your child announces that "Hey, I would like to go live with Dad", you may decide to go to the Probate Court and get a modification of a divorce order to have the child stay with you. However, if you have a conniving ex-spouse, the ex may go right down to court for an order, to bypass your honorable efforts to do it the right way - and you are cooked. The order will be issued, you will be an abuser, and your planned modification of custody will fail.
Based on that example, you can see that many of these motives require some thinking ahead to be aware of how a manipulator is going to short circuit your plans. You must be one step ahead, not just react. Because of the politics of the restraining order law, once you are accused, you are guilty.
How will thinking ahead help? In the case just cited, you need to IMMEDIATELY file your modification - that day - before your 'victim' can get an order. It is literally a race to the courthouse.
How about some of the other issues? The classic one used by thousands is Number 1, to get an order to gain an advantage in a divorce. What can you do? You file the divorce. You be the plaintiff. Then, when the person tries to get an order, you can at least point out that it may be in retaliation. If you have not filed first, there is almost no hope.
Motive Number 2, to quickly get the children without a hearing, often presents itself in paternity or post-divorce situations. If the ex wants to change custody, but doesn't want to go through the crushing rigamarole that the uncaring pharisees have made of the custody system, then a few minute restraining order hearing is just the ticket. You must watch out for signs of discontent, and head them off. It is much easier to diffuse a mad-dog ex than to fight a restraining order. Do whatever you must, but do not let it get to the point where there is talk about getting an order.
Numbers Three and Seven are closely tied together. Some people want vengeance, and they will use the children to get it. Using the children as pawns in a restraining order scheme, whose only motive is vengeance, is very very very very common. What can you do? Nothing. You can only fight fire with bigger fire, as described in the section below. A person bent on vengeance will be able to manipulate the feminist or spayed judge, because perjury is no problem for such a person. The best liar wins, and it is usually the one bent on vengeance. You MUST have another method of defense, such as being able to objectively show the manipulation, or some other clear cut method.
Motives 5 and 6 are always no fun for the evictee. Restraining orders are quick eviction orders, and they work like a charm. When the motive is to move a new partner into your spot, it is doubly frustrating. You better have the goods on the person so that you can show the ulterior motive, rather than the lie about abuse that will come out in court.
Numbers 8, 10, and 11 are all similar, in that the person getting the order is literally having fun tormenting you. This is often also mixed with some of the other motives. Rarely is one's malice pure, in only one category. Such manipulators are so clever that they cover a lot of bases. When dealing with vengeance, the first thing you must do is see if you can diffuse it - apologize, try to undo the bad feelings, anything to stop the onslaught. If your opponent remains charged up about hammering you, there is little you can do in advance, but you must fight it in court, and try to show the cruelty and manipulation by hard, cold, facts that have no other interpretation other than the vengeance motive. However, you likely know that such facts often don't matter. Victimhood is all.
Numbers 9 and 12 frequently occur with insecure women, who are easily beguiled by the victim-witness advocate, or the many women's shelter people, or some family hating DSS agent. They will often offer to help a woman (only) if she will get a restraining order. That is the ticket to getting financial help, legal help, a place to live, a car, friends, affirmation for being a domestic violence hero, etc.
Number 12 is particularly problematic, since you are then fighting an even larger, very well funded (with your money) enemy, and you lose the leverage of financial need on the part of the other party. The crazed, maniacal victim groups will slobber all over a woman to get her to come to their program, because it creates statistics showing how much they are needed, and provides the justification for getting even more money for their nefarious family destruction games.
For example, in Franklin County, there is one such institution called New England Learning Center for Women in Transition (NELCWIT), which has a $1.6 million dollar a year budget. Their philosophy is simple: Men are evil abusers; Women are victims.
When dealing with this type of Taliban-like fanatical man-hating coven, you must use a full quiver of strategies. They have huge resources, lots of lawyers, therapists for the children, and serious inside connections. prepare for the fight of your life. There is a special section below to deal with this menace. I can see them smiling at my acknowledgment of their power - this is, after all, about power. They are clearly winning the battle, since they have managed to steal so much taxpayer money, cow the courts into obedience, and neuter the lawyers from saying anything, lest, like me, they be thought badly of, and not get any more plum appointments, or even that long-coveted judgeship.
In any case, when you are dealing with a number 9 or Number 12 situation, you must be on the lookout for the motives of whoever is manipulating the Plaintiff for their own ends: money, power, justifying their job, or the like.
To sum up: The explanations so far set forth four basic techniques that can be used at hearings to oppose the issuance of restraining orders (detailed information about hearings is presented in another section below):
1. Expose the complainant's lies on the application or affidavit;
2. Show that you did nothing to place the person in fear of imminent, or serious, or physical harm, and that the paperwork does not comply with that standard;
3. Be prepared for more oral lies at the hearing, and have proof there to refute them.
4. Show proof that the plaintiff had an ulterior motive for getting the order that had nothing to do with fear of abuse.
If you can go prepared to a hearing to present testimony or documents which prove any, or even better, ALL, the above things, you have a chance of winning. There are other advanced and subtle techniques, but none are substitutes for these four. If you don't do some combination of these, you virtually cannot win, no matter what else you do.
An Actual Example of How to Apply These Strategies
Here is an actual Affidavit from a real case, along with commentary on how to analyze and apply these strategies in a real world situation. The complaining witness in this case, was not married to the defendant, but was pregnant with the defendant's baby, and simply wanted to ditch him. The defendant is a teacher, and would have been ruined if the order had been issued.
This woman's affidavit is reprinted here word-for-word, except the name is deleted. After a hearing to consider whether to issue a restraining order, the judge reviewed the affidavit, took testimony, and did NOT issue the order.
On or about September 24, 2001, the Defendant contacted me by email at my work place. At the end of August I called ________ to tell him to stop calling me, stop bothering me, that I wanted nothing to do with him. We had not been in contact for the prior 2 months at that point. I had to threaten to call the police for him to stop. He would call me up to 7 times a day. He know [sic] sends letters up to 3 a day, emails my home & emails me at work. He has written that he will not stop. I have had to change my locks (he has a key to my apartment and has not returned it.
Right now I am in fear of what might happen next. ________ has only gotten more & more aggressive as the days go on. I don't want to wait until he shows up to find out. I am afraid to go home from work in fear that he may be out there watching. I have made it clear for him to leave me alone and this has seemed to make things worse. I quite simply don't know what he will do next.
This affidavit is a good study for spotting the twisted logic of the complaining witness, and applying the principles and strategies set forth above.
First, we look for blatant, provable lies. In this case, (and the reader would not know this), there were a bunch of them, one of which hurts her own case. More about that in a minute. The lie was that the defendant did NOT call her up 7 times a day. We could not prove that. However, we challenged her on it, and she backed off the untrue statement.
Second, as to whether the allegations meet the legal standard for issuing an order, that is where the big points could be made. First, he had not been in physical contact for two months. Second, there is no allegation that he threatened her in any of these phone calls. In fact, she said, "I don't know what he will do next." However, he had not done anything. It was all innuendo and implication. Under questioning, she admitted that he had not come to her work, or her home, and had made no threats. She was simply trying to spin his attempts to contact her as causing her fear. However, it did not work. The calls and emails, without threats, does not rise to the level of placing a person in fear of imminent serious, physical harm.
Third, we came prepared for some new lies, when it became apparent that the judge was not going with her. He had indeed sent a lot of email to her, but the messages were all calm and appropriate, and showed that he was simply trying to get her to come back to him. I had them with me, in case we needed to show the tone of them to the judge. As it turned out, she couldn't come up with any convincing ones, but we were ready with the documents if need be.
Lastly, we had analyzed what the real motive was hear. She simply wanted a cheap way to dump her boyfriend, and keep him away - it was that simple. We knew she would then try to exclude him from the soon-to-be-born baby's life, and hit him with an order for child support, with no strings attached.
In this case, we did use the motive, by bringing out that she was pregnant. Since the judge already saw that there was no basis for an order, that information was not really crucial. However, if things were going badly, we would have used that to buttress our argument.
This was a fairly simple one. The hard ones are where they lie like a rug, and you've got nothing but your own word to refute it. Then, the best liar wins, and it is very hard to do much about it. However, in most cases, if you are mindful of the above strategies, and you prepare carefully, you have a reasonable chance of beating the false allegations, and stopping the order from issuing.
Your Day In Court - Standard Hearing
A civil proceeding is like a dance where all the steps are very carefully planned ahead of time, and when you get there you will feel like everyone knows the routine except you. The system really does play ‘hide the ball', to the detriment of non-lawyers, and gives them very little help. This section will help you get ready for the hearing for your restraining order, keeping in mind that this is your first time doing it.
Two Kinds of Hearings
There are two kinds of restraining order hearings: evidentiary and non-evidentiary. The kind of hearing used most often is a non-evidentiary hearing, where only the two parties stand in front of the judge, and informally present their case. You may cross examine the "victim", but not extensively. The use of these brief hearings, without the time to really put on a case, is one of the main objections that most people have to this law, and one of its many injustices.
This section will explain how to present a basic restraining order opposition case, and the next will explain the much more difficult evidentiary hearing. Much of what I present here can also be used in the longer form, as well.
What To Do When You Arrive - Copping an Attitude
On the day of your hearing, there will probably be lots of hearings scheduled. They over-book just like airlines, hoping several will be no-shows. You have to show up for the ‘call of the list' at a certain time, which is printed on your order, usually 9:00 A.M. Go to the clerk's office to find out which courtroom you are in, if it is a larger courthouse with many courtrooms.
Get early into the courtroom, and scope out the situation. There are two tables one for you (the defendant) and one for the plaintiff (the complaining witness.) Look for the witness stand, because you may have to make the long journey to that small scary piece of real estate. Many hearings are also done standing in front of the judge, rather than on the witness stand. Find out how it is done in your court.
There may be all kinds of unidentified bureaucrats milling about, and you have no idea what role they play. The ones you need to worry about are the judge, the courtroom clerk, who usually sits at a work station in front of the judge, and the court officers. The latter two can be of some help, if you will communicate with them. Some will be lifesavers, so always be polite. Lawyers often treat them with condescension, since they are obviously inferior to the lawyer's exalted status. Since you don't have that problem, be considerate, and ask all the questions possible.
The most dangerous person in the courtroom, next to the judge, it the so-called "victim-witness advocate", who is usually a severely demented person trying to work out their own tortured past, and their gut-deep hatred of men by ruining as many lives as possible. They rarely understand how destructive their behavior is. I give suggestions on how deal with this species in another section.
In any case, all this will usually seem dreadfully mysterious and spooky, but just ask the clerk a lot of questions until you get he/she to be clear with you. They often adopt the ‘public servant' attitude, and act like everyone should know what to do, even when they know you don't. Stay patient. NEVER NEVER NEVER (got that?!!!) NEVER show an ‘attitude' with a court clerk. That goes double or quintuple for the judge.
My clients, who are understandably frustrated at the injustice of the system, often cop an attitude, and who can blame them. The system which is supposed to reward truth usually rewards the best liar. But don't do it. Stay cool, by remembering that this is your future, and if you show the teensiest little bit of anger, you are proving them right that you are a big angry abusive brute. Never forget what you are dealing with - feminists and (with some exceptions) spayed men who won't stand up to them. So, if you are any more manly than Mr. Rogers or Barney the Purple Dinosaur, they will just know that your accuser is right about what an abuser you are.
Your hearing will not have a jury, (another gross abuse of justice), so the judge will be the one to decide whether the order is issued or not. If the plaintiff wins, an order is issued. If you win, the order is not issued and everyone goes home.
Don't forget to address the judge as "your honor", and to ALWAYS stand when addressing the judge. It doesn't hurt to stand when talking to the clerk either.
OK - Here You Go
Once your case is called, you go up front, or wherever the court officer directs you to go. The maladjusted victim-witness advocate will go up with the 'victim' for 'support', but mercifully will not be allowed to say anything.
The complaining witness goes first. The judge will usually ask the person why an order is needed, and then you will get to hear the lullabys, legends, and lies, as the old Bobby Bare song goes. The judge is listening to see if there is any fear expressed. If the person succeeds in sounding afraid, many judges will issue an order.
That is not the standard, however. As you know by now, (which is more than many lawyers), the plaintiff has the burden of proving that you placed the person in fear of imminent, serious, physical harm. As we noted repeatedly above, many plaintiffs do not do that adequately. However, if you are not right there to point that out, you may still lose.
The next thing to happen is you will then have a chance to question the plaintiff about the testimony, and about the affidavit. This is called cross examination, and this is probably where you will make it or break it. This is your most important moment, and you can win the case, if you have prepared as above, keep your wits about you, and ask questions in a gentle manner.
Yes, your mouth is dry as cotton, and you are nervous as a cat, but keep your eye on the goal. Some judges will be pretty patient with you, and others will be complete jerks. Before you can get started, the judge may ask questions of the complaining witness if some point is unclear. That is a good sign, because that means at least the judge is listening. If you about to launch, and the judge interjects, shut up. Judges are always allowed to speak over you. It is OK to ask, "May I proceed, your honor?"
The key, as you now know, is to discredit the affidavit that no one wanted you to know existed. The complaining witness probably does not realize that you have seen the affidavit. A surprising number of them contain really absurd things, as we have noted earlier. If you are lucky enough to have such a gift, launch right in and start asking questions.
Go through all the strategies set out above, piece by piece. BUT, BE GENTLE. If you come across like horseradish, the judge will believe you could be the abuser you are accused of being.
Your Turn to Testify
After you have completed your cross examination, and hopefully you can feel the case turning your way a bit, you get an opportunity to tell your side of the story. p>Rehearse your testimony, until you can explain your story pretty smoothly. Incorporate the allegations made against you, and explain them. However, don't ONLY be on the defensive. Have a positive story about yourself to tell. Talk about your good reputation in the community, your service to others, your good relationship with your children, etc.
Also, don't forget that the judge MUST have a plausible alternative explanation for why the person feels fear if you are to have even a slim chance to win. Give the judge the alternative, such as one of the ulterior motives.
Don't forget to key in on the actual language of the law, and assert that you did nothing to "place the person in fear of imminent, serious, physical harm." Break it down: No imminent harm - that is, not recent. No physical harm - not psychic harm. And no serious harm - no injuries.
Proving Ulterior Motive
To show an ulterior motive, you will have to be very forceful in accusing your accuser of that motive, and then provide proof. Otherwise, it is merely your word against the other's. That may mean bringing in a friend of the defendant who can say that the defendant has been going all over town bragging about wreaking vengeance on you, or how easy it was to get the new boyfriend into your house by getting an order. In this case, you are going to have to get the witness there, and do a witness examination, which is detailed below.
Your Day In Court - Evidentiary Hearings
Most of the material in the section above is applicable to the more complicated evidentiary hearings, but is supplemented by the additional information below.
Getting Witnesses There
If you determine that other witnesses beside yourself are needed to prove that the complaining witness was lying or had an ulterior motive, you need to get them there, and know what they are going to say. They don't even have to be friendly to help you, as long as you think that they will tell the truth under oath. A friend of the Plaintiff who can explain the lies or the ulterior motive right out of the the plaintiff's own mouth is a very effective witness.
You must prepare such a witness in advance, unless the witness is so adversarial that he or she will not talk to you. It is risky to put such a witness on the stand, but it may save your case.
You get a witness to a trial by a witness summons, which you can get from the clerk of court, and fill in the blanks. You then must have it served by a deputy sheriff or constable. (The difference between them is that sheriffs work for the gubmint, and a constable runs a private business.) It will cost you about 35 or 40 bucks per witness.
How do you know when to get a witness summons? The only time you can count on not needing a summons if it is a VERY friendly witness, who you know would be there even if meant missing their own funeral, or at least wouldn't mind missing reruns of Gilligan's Island. Otherwise get a summons. Most people need them for getting out of school or work, even if they are friendly.
You want to summons the witness at least a week before the hearing, if possible. If not, just let it rip, anyway. Get a summons form from the clerk of the court, or a notary, if the clerk gives you grief. Get a constable to serve it, plus remind the person a day or two before the trial. You will need something called a "return of service" from the constable, which proves the person got the summons. If the witness was served, and doesn't show, you can have him arrested, if needed.
Examining a Witness
If you have summoned a witness to testify for you, you want to "call" that witness after you are done with your own testimony. You stand up and say, "the defendant calls Mrs. Gert Gossipmonger" The clerk will administer an oath to tell the truth (never mind that the plaintiff ignored it), and the witness is all yours for a while. What a feeling of power, and of fear, too.
You should have carefully prepared questions in advance for the witness, and write them on a legal pad, in logical order. Some people can do this with jotted phrases in an outline as a reminder. Some need every word written out in order to remember. The questions must all relate to something the plaintiff testified to, something in the plaintiff's affidavit, or something you said. Of course, the big thing is to disprove fear, and show that it is all a sham.
OK, so Gert Gossipmonger is now on the stand. What do you do?
First, start with name and address to establish her identity, then have her explain in detail about her relationship with the plaintiff - how long she has known the person, how often she sees the person, how close the relationship is, whether her children play with yours, etc. The closer the relationship, the more credible it is, IF IT IS NOT A RELATIVE. (Only use your mother, if you have to. The plaintiff's Mother is good, though, since it will be assumed that Mom would never say anything bad about her son or daughter.) If you can get the plaintiff's best friend, and make sure that fact is known, then you are really cooking.
This initial questioning is critical, and a lot of people, because they are nervous, forget to lay the groundwork. Only then can you start talking about the evidence.
Next, you start asking Gert about the evidence. However, you must again lay a foundation for whatever you ask her. That means, for example, that you need to ask her where she was, and when she was there, and who was there, if she is to talk about something she overheard.
Another example. What if Gert heard the defendant talk about getting you put in jail so the new boyfriend can move in, or that she read her diary, which laid out a whole plan to remove you from your children's lives using a restraining order. Then, you should ask questions to bring it all out, in living color. A good analogy to illustrate this process is to ask questions as though you were looking at one frame of a movie at a time, and ask one question after another, to make the frames go by. You want to cut off a very thin slice of activity for each question you ask, and get very specific answers, not general ones.
If the witness is nervous, and can only seem to answer in generalities, help with more specific and suggestive questions, like, "what did you do then?", or "after that, what did she say?" Keep the film moving, frame by frame.
Try to only ask questions to which you know the answers. Many lawyers have been both surprised and horrified when they asked a witness a great question that could win the case for them, but they did not know how the witness would answer, and the witness answered it wrong for them.
If you get objections from the other side, wait for the judge to rule on the objection. If the objection is ‘sustained', your question is not allowed, and you need to ask it a different way, or go onto something else. If the judge overrules the objection, the witness may answer.
As soon as you are done with your questions, pause, think a minute, and if you can't think of anything else to ask, tell the judge, "no further questions, your honor." Then, the opponent can cross examine the witness.
Cross Examination of You
After you are done testifying, then you get to endure being ‘cross examined.' This is where the defendant or the defendant's lawyer tries to prove your evidence is somehow wrong, or that you have lied, or should not be believed. If the defendant cross examines you, or your other witness, it may not be too bad. If Barry Cuda, Esq. steps up to the stand and opens a can of whup-ass, you may be in for quite a fight. Here are some basic rules when you are being cross examined:
Rule One: NEVER be sarcastic or belligerent, no matter how sarcastic, belligerent, or even how dumb a question is. Rather, be very matter of fact, earnest, and sincere, and it will often backfire on your inquisitor. If you adopt a sarcastic attitude, the judge will react very negatively to you, even if you think you have been very convincing so far. You can lose all the progress you made if you get snitty.
Rule Two: Only answer the question that you are asked. Witnesses always try to explain too much. Think about the scope of the question, and only answer that question, and NO MORE. The best answers are "yes" or "no". Give brief explanations if needed.
Rule Three: Be honest. If you don't know the answer, say so, or ask to explain the question better. The judge will be an ally if you do so. That honesty must extend to answers that may look bad for you. Keep your integrity, at all costs. If you lose it, you lose your case.
Cross Examination of Your Opponent
Cross examination is one of the great traditional lawyer skills. You need a lot of practice if you are going to do it like Perry Mason. However, for this hearing, you can bumble along well enough to win your case.
The purpose of cross examination is to catch your opponent in a lie, to discredit their story, or to get an admission of some truth which will help you. If the defendant did not testify falsely, either by stating an untruth, or omitting a truth, you should not cross exam; Just let it go.
Cross examination works best when you can get the person to state something untrue, lead them down the primrose path to commit to that untruth, then you pull out some irrefutable evidence to show that it was a lie. This can be a former statement made under oath, such as the affidavit the defendant used to get the restraining order, or the testimony of a friend, or something to refute the statement.
This material can only HELP you to win. Frankly, it is a better idea to get a lawyer than to do it yourself, as with many specialized tasks. If you need further assistance, email me, and I will try to be of some help. May God bless your efforts to obtain justice. Read Proverbs 21:1, and Psalms 56 though 59.