Were you wrongly accused of harassment, stalking or assault? Or have you undertaken significant life changes and want to overturn your current restraining order?
You are not alone if you are confused about where to start or how to proceed.
Read on for all you need to know about challenging or changing a restraining order.
What is a restraining order?
Knowing how to challenge a restraining order means knowing what one really is! So, in simple terms, a restraining order is a court mandate used to prevent further contact between the offender and the victim.
A restraining order will cite certain restrictions that serve to prevent any future ability for the offender to harass, abuse or assault the claimant.
It is important to note that a judge can only issue a restraining order following criminal proceedings. However, the defendant does not need to be convicted for a judge to issue an order.
Therefore, if the judge feels that there is reasonable cause to safeguard the claimant, then they can still approve a restraining order. Aforementioned can be done even without the offender being found legally guilty.
What can a restraining order do?
Effectively a restraining order can offer assurance to the victim that the offender is not legally permitted to undertake specific actions.
Depending on what the judge rules, these can include:
- Not being allowed direct or indirect contact with the victim
- Being prohibited access to a property or premises
- Staying a certain distance away from a person or place
What reasons would someone want to change or discharge a restraining order?
There are several reasons why a person or both parties may want to remove, alter or discharge a restraining order. Some considerations are as follows:
- Sometimes a restraining order is imposed at the end of a relatively minor assault case, or low-level allegation of harassment
- The parties may want to reconcile
What should I do if I want to challenge or change an order against me?
The law is never one-sided; this means that it is set out to be fair to both parties. Therefore, if you were issued with a restraining order, section 5(4) of the Protection Act 1997 permits you to apply to the court to have an order discharged.
If you intend to apply to the court to revoke or vary a restraining order, you will need to prove that a change of circumstances has occurred.
If everything has remained the same, then it is unlikely that the court will be willing to adapt or dissolve the order. A change of situation is case-specific. Thus, each incident is judged on its own merits.
When applying to remove or alter a restraining order, an application must detail what circumstances have changed. It should also include specifics on why the order should be revoked or varied.
Besides, if you have been issued with a restraining order (either permanent or temporary), you must continue to follow it to the letter even if you intend to challenge or amend it.
Remember, this is still a court-ordered legal document (whether you agree with it or not). Hence, breaching it can result in severe penalties.
The first thing you need to do is contact a qualified, expert legal defence solicitor. They will be able to guide you through the process with efficiency and reduced stress.
What evidence do I need?
You will need to support your claim to have an order discharged or altered.
Various types of documentation are required to substantiate your case.
The requirements will be case-specific but can include:
- A copy of the initial restraining order certificate
- Evidence showing the completion of rehabilitation programmes (this can include proof of anger management classes or drug and alcohol courses)
- Statements provided by witnesses such as written affidavits or oral testimonies
- Any relevant proof relating to child custody or visitation rights
- Pertinent records provided by probation officers or law enforcement authorities
What should I not do?
Receiving a restraining order can likely be an incredibly stressful and upsetting time. It is essential to think clearly and act with good intentions.
You may be inclined to defend yourself. However, disputing or altering an order can be an extraordinarily complex and involved process.
Additionally, you will need to attend a court hearing and therefore having legal representation is vital for the validity of your case.
A family law solicitor will ensure that your expectations are managed, that all processes are followed correctly and that you do not implicate yourself accidentally.
Indeed, please do not contact the victim or petitioner to discuss the matter or try to sway their opinion. That will be a breach of your order and will result in severe penalties.
Consequences for breaching a restraining order can include:
- Financial fines
- The loss of individual rights (for example, child visitation)
- Custodial sentencing
- A probation period or extended probation period
- Community service
Temporary and permanent restraining orders
A temporary restraining order (also known as a TRO) is active as soon as they are issued. They will frequently have a set expiration date, which can range anywhere from 5 days to 2 weeks. They can also last as long as it takes to arrange a subsequent hearing.
Their purpose is to protect against contact or further interactions until a full hearing can be scheduled. A trial is when a permanent order may be applied. Permanent orders are enforceable for more extended periods and can last indefinitely.
If you have been issued with a TRO, then we recommend that you employ the services of a defence solicitor immediately. Before a restraining order can be made permanent, the case will need to be heard before a judge.
Therefore, you will have an opportunity to defend your position. A judge will weigh up the evidence given and decide whether to tender an order as permanent or not. A defence lawyer will be able to assist you with this.
How do I discharge a restraining order?
As restraining orders are issued through a court process, they also need to be removed via a court process too.
You will need to consider any applicable time limits on the order before deciding how to progress.
If your restraining order has an expiration date
Once the expiration date passes, then the order will expire. This is unless you renew or extend it through the courts.
If your restraining order does not have an expiration date
A motion will need to be filed with the court if you intend to have an order amended or discharged before the time limit expires.
Any motion to remove a restraining order must include:
- The names of both parties
- The date the order was issued
- The full reasons for wanting to end the order
Following a court hearing, the judge will decide whether to grant or deny the motion to dismiss or amend the order.
The UK court of law understands that circumstances change, and people and situations can evolve. Therefore, with enough evidence and proper representation, you can apply to alter the outcome of many courses of litigation.
Have you decided or established that a restraining order needs to be changed or discharged? Have you been unfairly granted a temporary or permanent order and do not know what to do? Do not panic!
We have a panel of criminal solicitors waiting for your call. They will talk you through your options, rights and how to resolve your specific situation.
Related article: Restraining Order: How long can it last?
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