Fighting a restraining order is a difficult undertaking, but not impossible. NEVER underestimate just how bad the system can be. Don’t believe it’s all about “justice.” Don’t believe that truth will “always be on your side.” Sometimes, the better liar or the better actor does win out over truth and reality.
At the risk of repeating this notion, a great many of the suggestions listed on the Protecting Yourself page (among the others) also apply here. Read it. Learn it. Know it.
A lot of different approaches and strategies go into defending against a restraining order so we’ll cover the basics here and, as your specific circumstances dictate, discuss and explore other options with you.
As with many situations in divorce and custody matters, you’ll find yourself going back and forth to the court house. A false-accusation and subsequent restraining order is no exception. The sooner you find about it, the sooner you can put the defense wheels in motion. You have to get access to the application and affidavit that the plaintiff filed at the ex-parte hearing. (Ex-parte hearings are one held in the accused’s absence… an “emergency” hearing.) The court will not volunteer to you that these documents exist. We are. You will have to go to appropriate clerk’s or prothonotary’s office in the court/jurisdiction where the restraining order was issued. Once there, ask for the following two items:
- The application for the restraining order.
- The affidavit that the false-accuser (the complainant( swore-out.
The application will have the documented statements detailing why the accuser wanted the order. The affidavit is the written swearing, made under oath, of the alleged “facts” supporting their application. Since the accusation is false, they both will be chock-full of lies and embellishments. As such, it’s perjury. (Don’t get too excited about that, making such falsifications to authorities you’ll rarely see punished, and if you do, it will be nearly meaningless. Don’t let that distract you – your goal is a successful defense!) Having the docket number handy will aid the clerk in getting the documents in an expeditious manner. It may appear as the “case number” on your order.
Do not let the clerk dissuade you from getting these documents. You’re absolutely legally entitled to them. Calmly and politely disregard the grumbling and excuses. As they are public records you are entitled to them. Further, even if they weren’t, as a party to the case you are entitled to them.
Once you have these two important documents in your possession, you have to begin work exposing the lies in each. This is a critical strategy to use in every single case. No exceptions. You have to explore if there are indeed lies in the papers which you just obtained from the file. Of course there are! You’ve been falsely accused. This first strategy is your best and probably the easiest to fetter out. Once you expose the accuser’s penchant for lying under oath, you have cast heavy doubt in the judge’s estimation as to the veracity of anything that comes out of the accuser’s mouth in addition to what has been documented and sworn.
This is accomplished by looking for, discovering, and proving (with objective evidence whenever and wherever possible) factual impossibilities. The easy ones will be those that the accuser has used to accentuate their flair for the dramatic:
- The accused had threatened to “kill everybody on earth.”
- The accused had threatened to “blow up the world.”
- In the infamous David Letterman restraining order, he was harassing his accuser by sending messages through her television over the airwaves.
Well, good luck proving any of those are possible or truthful.
More commonly, you will be working on exposing the lies which involve people, places, things, times, distances… one or more all at the same time depending upon the level of detail. The greater the detail in the false accuser’s sworn documentation, the greater opportunities to you will have to expose the fraud and perjury.
- If you are accused of doing something during a period of time when you were at your place of employment – you will have time-cards, login times, and eyewitnesses to counter that claim.
- Perhaps the time and location of the stalking, abuse, or harassment are easily debunked because you have proof of being at a location at a time when it would have been utterly impossible to be at the location the accuser places you. You have receipts from a restaurant, a gas station, a convenience store, or the supermarket. Check those credit card records!
- Phone records, particularly cell phone records can put you at a location at a particular time that is too far from the alleged infraction for it to have happened at your hands. Thanks to those handy-dandy cell towers!
- Email records and IP addresses can also offer you an alibi and prove that your accuser is a liar and perjurer. Yes, even email records can show you were at a place and at a time different from the accuser’s documented story.
- Of course, witnesses can place you elsewhere at the time of the alleged altercation. Or, they may have been there when the altercation supposedly occurred and can testify that what is alleged never took place.
- Does the accusation include allegations of injuries? Severe injuries? Well, find medical records. Subpoena them. If someone suffered such injuries and didn’t seek medical treatment or call the police – it makes their allegations incredibly suspect.
- Explore every avenue that will demonstrate you weren’t there, that you didn’t do it (there or not), and keep an organized file with receipts, sworn affidavits, subpoenas for records, etc.
If faced with a situation where there were no witnesses and you cannot find one shred of exculpatory objective evidence, you still can’t give up defending yourself. You simply have nothing to lose by trying. Keep looking for proof! However, know that without it, there are other ways to defend yourself.
Perhaps you will be able to demonstrate that the affidavit failed to meet appropriate legal standards and requirements. This strategy is the 1B to the 1A that is the search for objective evidence proving your innocence and the accuser’s perjury. A win without success with “1A or 1B” becomes much more difficult. These are your primary lifelines to dismissal.
The argument about the legal standard isn’t often even made by attorneys, despite being fairly critical to a successful defense. Your job is to demonstrate for the judge that you simply did not place the accuser in fear of “imminent, serious, physical harm.” Here is where reading your state’s statutes are critical as well, as we’ve previously discussed the rather broad applications that some states have for stalking, abuse, assault, and harassment. The accuser has to prove each of these requirements in your state’s statutes. In our example, presume the statute explicitly states “imminent, serious, and physical.” This is where you are stuck with the flipped requirement and are guilty until proven innocent. This is where you try to disprove each element, even though the burden of proof is on the accuser and do so whether you like it or not!
Accomplish this by demonstrating that the statements in the documents (the application and the affidavit), as written, don’t meet the requirements of the statute. Be very particular about your examination of the two critical documents. Every word in every sentence in every phrase must be dissected and then compared to the statute. Does the accuser allege imminent harm? Does the accuser allege serious harm? Does the accuser allege physical harm? If they do not, you have your secondary line of defense. Many complaining witnesses only allege fear or some other vague malady. While these broad applications may be in place within your state’s statutes, know that in many – they are not.
Be ultra-critical with your examination. In many cases, the careless false-accuser will allege that something “may happen” in the future. It’s an assumption and does not constitute “imminent” danger. If the accuser alleges that something you do is “annoying” or makes them “uncomfortable,” then clearly the danger isn’t “physical.” If the accuser’s contention is that you swatted them on the buttocks, that is clearly not a “serious” attack.
At the hearing, expect to hear more lies piled onto those that the accuser has documented. Once you use information within their documentation to expose their lies, more are sure to come during testimony. Expect to be accused of everything that is part of the accuser’s stream-of-consciousness lying. Be prepared ahead of time to expect what’s coming. We can tell you expect what comes from what I call “the false accuser’s playbook.” Substance abuse, child abuse, sexual abuse, harassment, stalking… will rise to the top of their list. Come in with time-lines and proof of where you are and who you were with dating back as far as you can reasonable do it.
If an accuser comes up with “new evidence of your abuse” at a hearing, that were not in the affidavit, question why. After all, if these things were important, or even true, they most certainly should have been included on the original documentation. The argument is that this is merely an attempt to lie to cover-up the previous lies. Anything that would have helped the accuser’s contentions absolutely would have been in there. Your task is to make sure that the judge recognizes this. Focus on this and exploit these inconsistencies for all their worth during examination and cross-examination.
Now, while we are here to help everyone regardless of gender, race, sexual orientation, etc. – we do not ignore the biases that are inherent within the system. We proceed with that understanding and the understanding that women file approximately 85% of all restraining orders. Therefore, the following information is extremely important to be aware of, particularly for men and fathers.
Each court typically has a “victim witness advocate,” paid for with our tax money. The VWA helps women only to prepare these affidavits to conform with the requirements of the law. Any smart member of the feminists’ arsenal of lawyers will also have helped her client to fill out the paperwork properly. It is widely known that agents also convince women to lie and falsify documentation to get restraining orders. Any quick search of “restraining order abuse” will yield reputable reports and studies which detail just how pervasive this issue is. The purpose of assisting them in the is regard is to inflate their domestic violence statistics. The higher the statistics – the more government funding of such organizations, which cater only to women who are allegedly victims of abuse, stands to gain. It’s a horrible self-feeding cycle that is propped up on the backs of men and funded by all of our tax dollars. While that is wholly an unconstitutional issue – that is a discussion for another day.
Often, the women’s DV shelter will provide the woman shelter, therapy, transporation, money, freedom, food, etc. and a whole lot more. Like it or not, the reality that there are steep incentives throughout the “domestic violence organizations” that are hinge on a woman’s willingness to get an order, regardless of whether or not the order is predicated on lies and/or embellishments of the situation. As the allocation of funds requires victims, the system must always have victims, and victims who can make a restraining order happen at any cost. This is why false accusers and restraining order abuse is so out of control. There is almost no downside to false allegations of abuse, harassment, stalking, assault, even rape. If any punishment is meted out, it’s often the proverbial “slap on the wrist” and never rises to the level of life-upset suffered by the target – even after they’ve been exonerated.
Once you have unearthed the false-accuser’s motives, then you can plan your “big picture” strategy. You employ the strategy at the return hearing where you should be able to have your say, defend yourself, and examine witnesses. The final critical step is demonstrating for the judge that there is an ulterior motive that isn’t an “imminent fear of harm” that has produced the false-accuser’s allegations. Usually, you will find it’s a custody-related motive, but there are others. You must put forth a provable argument demonstrating the ulterior motive. Some false-accusers make it easy, others more difficult depending upon the circumstances. The judges in this country almost always lean towards issuing an order, so be ready, be organized, have your witnesses in order… and have your evidence at-the-ready.
For more discussion about restraining orders, preventing them, and/or fighting them, please do be sure to visit our forums and share your experiences.