Have you ever had an order of protection placed against you and felt it was unjust or unnecessary? Perhaps you’re struggling to navigate the complex legal system and understand the steps required for dismissal. Rest assured, you’re not alone. Many individuals face the daunting task of attempting to dismiss an order of protection, often with little knowledge of the legal process or how to present their case effectively in court.
Defending yourself from an order of protection is technical, and the legal requirements for dismissal can be complicated. From the process of presenting your evidence in court to the consequences of violating an order of protection, the importance of seeking legal assistance should be obvious. Keeping up with and understanding the process and increase your chances of successfully learning how to get an order of protection dismissed.
- Orders of Protection are remedies or legal measures meant to protect victims from abuse or other potential harm.
- Emergency Orders of Protection are intended to be only temporary by nature but can remain active during the pendency of the action.
- Dismissal generally requires the filing of a motion requesting dismissal and arguing the motion before the judge.
- Seeking legal assistance is essential for navigating the process when you have been accused of conduct that necessitates an order of protection.
- A Motion to Re-Hear may be filed in the Order of Protection case by the Respondent, and the person filing the Motion to Re-Hear the Order of Protection may appear before the Court upon two days notice to the other party.
Understanding Orders of Protection
Orders of protection are legal mandates or orders of court aimed at safeguarding victims from potential harm. Protection issued by the court is designed to keep the defendant at a distance from the victim and can be extended through a court date if necessary. The Order of Protection process is victim focused. However, the Respondent in an Order of Protection has rights, such as the right to notice of long-term Orders of Protection and the opportunity to be heard at an expedited hearing where evidence can be presented.
If the respondent does not request a hearing after being served with the order of protection, the court may not conduct a hearing. If the respondent does not appear at the scheduled hearing, the court may grant the order of protection on a long term basis due to the respondent’s failure to appear. If the respondent does appear and quickly requests a re-hearing, the respondent in an Order of Protection case should typically be entitled to have that request heard.
Purpose of an Order of Protection
The primary purpose for Orders of Protection as well as for other similar no-contact orders include:
- Prohibit further abuse caused by the alleged abuser
- Prevent any contact between the alleged abuser and the victim
- Require the alleged abuser to stay away from the victim
- Provide immediate protection to the victim and their household members
- Protect the safety of the victim once the protection is issued.
Orders of Protection aim to shield individuals from different types of abuse, not just physical abuse. Orders of Protections consider harassment and intimidation to also constitute abuse as legally defined. There are numerous forms of non-physical abuse that still constitute domestic violence or abuse for Order of Protection purposes.
Types of Orders of Protection
There are three main types of Orders of Protection:
- Emergency Order of Protection: issued without notice on a temporary basis to keep an abuser away until a permanent order can be sought, lasting 14 to 21 days.
- Interim Order of Protection: issued with notice given to the other side but still on a temporary basis, until a permeant order can be sought.
- Plenary Order of Protection: issued after both sides have been given the opportunity to present evidence, lasting up to two years.
Legal Requirements for Dismissing an Order of Protection
To dismiss an order of protection, certain legal requirements must be met, like proving no violation happened or submitting a motion for dismissal. In order to have an order of protection dropped, one must:
- Return to the county court where the petition for the original order was filed.
- Complete the necessary paperwork.
- Speak with the judge or another court officer prior to the order being vacated.
Filing a Motion for Dismissal
Submitting a motion for dismissal involves presenting a formal request to the court, detailing the grounds for dismissal. The petition must include the date, the rationale for wanting the order of protection dismissed, and the names of each individual involved. When filing a motion for dismissal, there may be several potential obstacles, such as insufficient evidence or lack of compelling legal basis to support the dismissal, failure to meet the legal requirements or criteria for dismissal, substantial opposition from the party who obtained the order of protection, procedural errors or failure to follow the correct filing process, and a respondent’s general lack of understanding of the legal system.
Thus, seeking advice from an Order of Protection attorney is recommended, if you wish to efficiently tackle these hurdles.
Proving No Violation Occurred
Violations of Orders of Protection are often seen as further acts of abuse that provide yet another reason why the Order of Protection should be granted on a long-term basis. As such, the accused may wish to provide evidence that they have not violated the order’s terms to support their position that the Order of Protection was not breached. This evidence may include:
- Security camera footage indicating no contact or interaction
- Photographs, receipts, or other documentary proof
- Police reports or other incident reports or documentation
- Text messages or other electronic communication indicating no violation
- Witness testimonies confirming no violation occurred
- Medical records that support the conclusion your wish to convey
- Documentation or records affirming the absence of any violation
- Any other pertinent evidence indicating the lack of a violation.
Phone records, for example, may be used as evidence of compliance with an order of protection. Testimony may also be accepted as valid evidence to demonstrate that no violation of an order of protection has occurred. One approach to obtaining surveillance videos or pictures to demonstrate no violation is to source them from security cameras or surveillance systems that may have captured the relevant area or incident.
Tips for Presenting Evidence in Court
While presenting evidence in court, having appropriate documentation, witnesses, and relevant subpoenas are necessary. Your analysis of the allegations of the petition along with your responsive pleading are often necessary for persuasion and sources of the truth for the Court. These factors can impact the outcome of the case and help persuade the judge to dismiss the order of protection.
Documentation and Witnesses
Documentation and witnesses can reinforce the defective nature of the Petition for Order of Protection. Persuading the court that the Petition for Order of Protection is defective is one way to spearhead a Motion to Dismiss. The following may be used counter the Petition for Order of Protection:
- The lack of emergency circumstances
- The untimeliness of the request
- The absence of abuse alleged
- The lack of personal jurisdiction
- The lack of subject matter jurisdiction
- The lack of required familial relationship
- Affirmative matter that defeats the Petitioner’s claim
Witnesses who have witnessed the defendant’s conduct and can corroborate their non-violent behavior can be beneficial in bolstering the respondent’s defense. In any event, the respondent should address and emphasize both the legal deficiencies as well as the factual deficiencies of the petitioner’s Petition for Order of Protection.
Demonstrating Changed Circumstances
Showing altered circumstances, like participation in counseling or anger management, can also convince the court to deny or revoke the order depending on the circumstances. Some examples of programs that may be regarded as positive changes or circumstances that may support a dismissal of an order of protection include:
- Anger management
- Parenting classes
- Domestic violence intervention
- Substance abuse treatment
- Mental health care treatment
To demonstrate involvement in counseling, anger management, or other appropriate programs as directed by your attorney. You will want to furnish documentation such as certificates of completion, attendance records, or letters from the program facilitator or therapist.
Consequences of Violating an Order of Protection
Violation of an order of protection can result in serious repercussions, encompassing criminal charges, fines, penalties, in addition to stiffer order of protection terms. A violation of an order of protection may be classified as a Class A misdemeanor, with the exact charges varying depending on the circumstances. Note that the petitioner initiating the contact with the respondent, despite the respondent being prohibited from contact with the petitioner, does not absolve the respondent from arrest for violating the order of protection. Violations by the petitioner may have no effect on the respondent, meaning the respondent cannot use the petitioner’s violations as a defense for the respondent’s violations. In fact, the respondent would be required to leave the premises if the petitioner goes where the respondent is located, even if the respondent was there first at the location.
Penalties for Violation
Penalties for breaching an order of protection may comprise of fines, imprisonment, and further more serious legal outcomes. The range of fines for violating an Order of Protection can vary from state to state, with some states imposing significant fines and jail sentences for egregious circumstances or repeat offenders.
The average jail time for violating an Order of Protection can vary depending on the jurisdiction and the specific circumstances of the violation, with second and third offenses potentially resulting in longer jail sentences.
Seeking Legal Assistance
Obtaining legal help is imperative if you are trying to dismiss an order of protection or need defense of a false order of protection. Given the complexity of the legal process and the difficulties of orders of protection, obtaining legal assistance can offer:
- Expertise and knowledge
- Advising you of relevant facts
- Strategic advice
- Court representation
- Speaking on your behalf
- Protecting your rights
Consult with an order of protection lawyer if you need to dismiss the order of protection filed against you or if you are the respondent in an order of protection case.
Complimentary consultations with attorneys can assist individuals in comprehending their options and the necessary steps for dismissal and building a defense. During a consultation, an attorney can:
- Review the facts of the case
- Identify possible sources of evidence
- Determine potential legal arguments or defenses
- Explain the legal process for requesting the dismissal of the order
- Offer guidance on gathering supporting evidence or witnesses
Moreover, a free consultation can aid individuals in understanding their rights and choices, equipping them to make educated decisions about their case.
Navigating the Legal Process
Legal professionals can steer individuals through the process, ensuring that they have the best possibility of successfully getting the order dismissed. A restraining order attorney may be responsible for:
- Seeking to have the order dismissed
- Building a defense to the allegations
- Providing assistance in gathering evidence
- Preparing legal arguments
- Presenting the case to the judge
- Calling witnesses as appropriate
The attorney’s role is to advocate for the dismissal or defense of the order of protection based on the relevant circumstances and all possible legal grounds.
In summary, understanding the legal process and requirements for dismissing an order of protection and defending yourself from the allegations is crucial for the protection of the respondent. Presenting proper evidence with the support of applicable legal arguments, demonstrating changed circumstances, and seeking experienced legal assistance can exponentially improve your chances of a success in dismissing the case. With the right knowledge and guidance, it is possible to navigate this complex legal landscape.
Schedule a Consultation with Attorney Zachary Townsend
Call or text today – (815) 200-8802
Frequently Asked Questions
How do I get an OP dropped in Illinois?
To have an order of protection dropped in Illinois, you will need to go to the county court where the petition was filed, complete the necessary paperwork, such as a Motion for Re-Hearing, and present evidence of the defectiveness of the petition for order of protection. You may also required to testify before the order is vacated.
Can you appeal an order of protection in Illinois?
Yes, you can appeal an order of protection in Illinois by filing a notice of appeal within 30 days after the entry of the final judgment.