Should I dismiss my temporary restraining order?

02April

Should I dismiss my temporary restraining order?

Article by Daniel A. Levy, Esq.

As part of my divorce and family law practice, clients often come to see me and ask if they should dismiss a temporary restraining order that they filed against their former partner or spouse. And many times, clients come into my office and tell me that they recently dropped a restraining order on the advice of an attorney. Often, this is very surprising to me because if you were being harmed by someone close to you and you felt that you needed a restraining order just a few days or weeks ago, why would you simply drop the restraining order now? Below, I want to go over briefly some answers to questions that such clients often ask (or are afraid to ask).

First, it is important to note that you never ever should feel forced or coerced into dropping a restraining order. There is absolutely no reason, ever, that you should dismiss a temporary restraining order (often called a “TRO”) if you do not want to. This should go without saying, but frequently I hear people say that they dismissed their TRO because they felt or were told that they had to. This is definitely not the case. If the TRO was issued, that means that a judge already determined that there is a well-grounded suspicion that you were victimized by the defendant. And you have every right to have your day in court, present your proofs, and let the judge decide if your TRO should be converted to a Final Restraining Order (known as an “FRO”). Having said that, there are times when dismissal of the TRO is in someone’s best interest.

In my practice, I look at domestic violence cases as typically falling into one of two groups: The first group consists of things like harassment, online bullying and the like. The second group consists of everything else. That is not to say that harassment is OK – it absolutely is not. But the reason why I personally separate that in my mind is because things like text messages and phone calls can be blocked with technology. And while no one wants to receive harassing text message or threatening phone calls, words do not put someone’s physical safety at risk. Also, future acts of harassment and the like are trackable when they occur on text, phone, and social media. The more egregious forms of domestic violence cannot be blocked with technology. You cannot press a button and put up a forcefield that physically stops an assault. And unless there is a camera or witnesses, future assaults are not documented like text messages. Also, there is a level of danger that exists when someone crosses that line – you may believe that a person meant it when they said “I’m going to kill you” during a heated argument (and they very well may have), but if they say that while choking you it is something far, far more serious.

Against that backdrop, my general feeling is that the less egregious acts of domestic violence (the harassment, texts, yelling, etc.) are things that we may be able to move on from and resolve by way of a written agreement of some kind. That is something to be considered in conjunction with an attorney. However, for all of the other types of domestic violence, I typically am of the opinion that people should not dismiss their TRO. I have heard reasons like, “I think they learned their lesson”, “They said they wouldn’t do it again”, “I didn’t want them to lose their job”, “I don’t think the judge will believe me”, “It’s their word against mine so it’s not worth it”, “We have kids together and didn’t want them to be affected”, “If I go forward it will affect our divorce”, and other reasons. I very frequently tell people that they absolutely should not dismiss their TRO for reasons like this – worst case, you lose at trial and you wasted a little time and money. But best case, you have heightened legal protection from your abuser, a presumption of custody of any children, and the right to certain economic benefits and/or property (in certain cases).

It is your right to dismiss your TRO if you want to and you feel safe. But certainly discuss this with an attorney before you do so. Only your attorney can give you advice about your specific case – the above are just some general thoughts – and this is a decision that is complicated, very specific to your case, and permanent.

Posted by Daniel Levy  Posted on 02 Apr 
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