Are You Fighting a Restraining Order, Even Though it Was Never Served?

For fathers fighting a restraining order as part of a custody battle, the fact that they are fighting a restraining order often comes as a complete surprise – the first idea they have of what’s happened is when paperwork is served to them, when they’re warned not to go within a certain distance of their angry ex and/or their kids.

The reason these dads aren’t aware of what’s happened until that point is that a restraining order can be issued “ex parte”, which means that the plaintiff (your ex) feels at risk of harm and can request the order without you having to be in court. These orders are often called “ex parte” orders community law wellington volunteer because of this. It’s only afterwards that you are officially notified, and once the court has received confirmation that you’ve been served, it will confirm that the second hearing will take place – that’s the one where you can defend yourself and stop it becoming a permanent order.

There is an important factor to all of this, however – and that is: you cannot violate a restraining order’s terms if you have not yet been served. If you haven’t been served an order, it can’t become permanent at any later court date.

The paperwork needs to be delivered to you in person, and it will contain several elements:

the date and time of the second hearing (which will be your first!)

information on the terms of the restraining order, for example, details of what its location restrictions are (within 100 yards? 500?)

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copies of any documents that the plaintiff filed with the court to support the request

it will have been served at least 5 days before the permanent hearing

they can be delivered by anyone who is over 18 not named as a party what does law of agency mean to the order case (normally a police officer or county sheriff)

All this sounds like the answer to “how to fight a restraining order” might be: ignore it. Unfortunately, the situation isn’t that simple. The defendant (you!) does NOT have to accept the paperwork to consider as having been “served” the order. But, significantly:

The only proof that the court needs is a signature from the server to confirm proof of service.

It’s a dangerous tactic to consider avoidance as a tactic to fight a restraining order for other reasons, even if you could successfully avoid the court’s decision that it has been legally filed.

Essentially, if a father has been accused of abuse, domestic violence or other phony allegations, judges will see any objection to fighting a restraining order legitimately (through the court process) as a sign of proof that the accusations are true. If there’s one thing you don’t want to do, it’s make a judge think that the reason you refuse to appear in court is that you haven’t any real defense (rather than the truth – that the allegations are completely without merit). Basically, by ignoring or avoiding the restraining order, it makes you appear guilty.

Every year, lots of fathers start to figure out how to fight a restraining order which has been based on phony allegations. If you are one of them, the only way forward is to accept the restraining order when it’s being served, and prepare your defense for court. It’s the best way you can guarantee to win custody of your kids during a divorce case being handled in such a sly and tactical way. Just remember that thousands of American dads are winning their cases every year – and you can too.

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