Strategically helping Colorado clients through divorce & custody cases
Published on:

Avoiding Problems in Colorado Restraining Order Cases (Part 2)

stock-photo-2953612-stop-sign.jpg

Our last blog posting dealt with issues related to restraining orders. The posting was prompted by a rash of restraing order cases this summer, with numbers higher than any given year that I can remember in at least the last decade. In that article, I discusssed some of the pitfalls the person served with a restraining order might face, including pitfalls which could have lasting consequences, including criminal. This second posting on the topic will cover the opposite side of the coin in terms of behaviors the person seeking the protection order should avoid as relates to conduct, or contact with the restrained person.

When seeking a Colorado restraing order, the person in need of protection will first go to the court and fill out various forms, setting forth, on paper, the allegations or incidents which give rise to the need for protection. Generally, these allegations will relate to domestic violence, threats of domestic violence, or stalking type behaviors. Part of the paperwork will entail stating that he or she is in fear for his or her safety, or that of the children, if the other party is not restrained. In essence, the standard is that the person seeking protection is in fear of imminent harm if he or she is not protected.

Once the paperwork is turned in, the protected person will go before a judge or magistrate, testify as to his or her concerns and allegations, and most likely be issued a temporary protection order. An evidentiary hearing will also be set, at which it will be determined whether the protection order will be made permanent. As there are things a restrained person can do to damage his or her case, there are also things we, as Colorado family law attorneys, see over and over again, that the protected person can also do to damage the outcome of the case. Set forth below are a couple of simple rules to follow to help in making your protection order stick, or become permanent.

1. Do not call, email, text, meet with, or otherwise contact or engage the restrained person. Most often, protection orders are between romantic partners, whether boyfriend/girlfriend, husband/wife, or mother father. Generally, there is an emotional attachment between the parties, and sometimes the connection due to children. Lives are intertwined. Sometimes, as is part of the cycle of domestic violence, the abused party is so inter-dependent with the abuser that he or she does not know how to function without that person, and cannot imagine life without him or her. It is an issue of control. Regardless of the relationship dynamics, we see instances in which the protected person will reach out to the restrained person. We see this done through phone call attempts, chance encounters at a some random location at which they talk, text messages, or emails. The protected person may believe that he or she is not the person prohibited from contact under the restraining order, which is technically correct. However, seasoned attorneys, and courts, are looking at the behavior of the person seeking to make the restraining order permanent. The professionals involved are fully aware that when a person says he or she is in imminent fear for his or her safety, that any attempts at contact can damage the credibility of that person. The line of questioning in court would go something like this:

“Now, you indicate in your complaint for protection order that you are in imminent fear for your safety correct?”
“And you have asked the court to order no contact of any kind correct?”
“Yet on three separate occasions since the temporary protection order was issued, you called the restrained party didn’t you?”
“And this is your phone number listed on this cell phone bill, correct?”
“So you had contact, inititated by you, not the other party, correct?”
“So when you stated to the court you were afraid of any contact, you weren’t necessariy truthful, were you?”

The dialogue can go on and on, but the gist is clear. By establishing, or having, contact with the restrained person, the protected person casts a spectre of doubt as to his or her credibility and sincerity as relates to the allegations raised. With interconnected lives, particularly with children and finances, people often times forget this simple rule. They reach out to the restrained person, without understanding the consequences or the damage done to the case. Something as simple as a short text message can completely wreck a restraining order case. Thus, from a better-safe-than-sorry approach, do not contact the restrained party, for any reason. Likewise, if the restrained person contacts you, do not respond. Perhaps call the police. Courts can always enter orders regarding communication related to children or finances as part of a permanent protection order. Until then, communication must cease.

2. The second rule also ties into contact with the restrained party, but relates to physical contact and shared homes. We recently saw a case in which the protected party sought a temporary restraining order, but waited several days to have the restrained party served. This may not matter for cases between neighbors, co-workers, or strangers. However, it can matter as relates to people living together. In our recent case, the protected person remained in the home, with the restrained, for days. They spent time together, ate together, and slept together. Going back to the issue of fear of an “imminent” nature, one who is professing to the court that he or she is in fear for his or her safety does not logically go back to the same home, spend days with the person to be restrained, and then get to come back to court a couple of weeks later and still profess to be afraid. As with the examples set forth above, credibility often goes out the window. If you are afraid, you need to exemplify such by staying completely away from the person against whom you are seeking protection. The restraining order will allow you to list addresses from which the restrained person needs to stay away. This can include your home. Do not wait until that person is served to sever contact. If you know it’s going to be a few days, or hours, until you can get that person served, leave, go to a friends, but do not linger in the home waiting for service. Again, this can damage your case and is just the type of behavior the attorney for the restrained person is looking for to raise in court. Be smart, and safe.

These are two simple rules which, if violated, can leave the person seeking protection ultimately unprotected. Though the restrained person is the one who will certainly get into more trouble should he violate a restraining order, it is implicit that the protected person also avoids contact. Help yourself, and your attorney, by heeding the advice set forth in these simple rules. Protect yourself and your rights.