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Fighting an Order of Protection

An order of protection, sometimes called a restraining order, is an order from a judge. It tells the respondent (the person who the order was filed against) to stay away from the petitioner (the person requesting the order) or to stop certain behavior toward the petitioner.

Protective orders are an important legal tool for victims of domestic abuse. Illinois law defines “abuse” to include physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. This definition is from the Illinois Domestic Violence Act. You can’t get an order of protection against just anyone. It’s limited to family members or members of the same household, although this definition can include former spouses and couples who were dating or engaged.

For obvious reasons, the process of getting an order of protection is fairly simple and quick, because it’s meant to protect someone who is being abused or harassed. But because an initial order of protection is based on the word of one person, it’s not always legit. Too often, these orders are used as tools of revenge or in desperate attempts to gain or keep custody of a child. One parent figures that if they say the other parent is abusive then they’ll win the case or at least keep the other parent out of their lives temporarily.

A false accusation of abuse can be devastating for the accused. It can also be overwhelming and feel like a hopeless situation, not to mention the affect it might have on any children involved. On top of that, it can hurt your employment and you might have to pay legal fees in order to set things straight. You might be forced to move out of your home, stop contacting the accuser, stay away from certain locations and stop seeing your children, to name a few.

The problem is that the alleged victim might be the only one who gets to tell their side of the story, at least initially. An emergency order of protection can be granted by the judge – and often is – without getting the other side of the story. In fact, you might not know anything about it until the order has already been granted. If you get served with an order of protection, the documents should explain the basis for the order. There will also be a court date. Emergency orders of protection only last a short time. So you will get your chance to present your side.

The most important things to do at this point are (1) obey the order and (2) show up on your court date. Violation of an order of protection is a crime. Even if an order of protection is bogus, you have to obey it or you run the risk of making the entire situation worse. You’ll be arrested and might face criminal charges. It’s easier said than done, of course. Especially in situations where you want to see your children, or the situation in which the accuser purposely tries to get you in trouble for violating the order.

If you fail to attend the court date, the judge could enter a more permanent order of protection against you without hearing your side at all. The best thing you can do in preparation for your court appearance is to hire an experienced attorney to represent you. This almost always gives you a better chance of a good outcome. When you appear in court, be on time, be respectful, dress conservatively, and try to stay calm.

It’s an incredibly frustrating situation. The judges signing orders of protection often find themselves in an impossible position – balancing potential threat to life against the possibility that the person seeking the protection might be lying. So you have to assume they’re going to err on the side of caution. Unfortunately, this makes room for abuse of the system. It can seem daunting to fight an order of protection, but if you present your case well to the judge (ideally with the help of an experienced attorney with a good track record), he or she should be able to see the situation for what it really is.