North Carolina judges often issue restraining orders in domestic violence cases to protect alleged victims until the court hears the whole story. Common provisions include restrictions on approaching the filing party’s residence, place of employment, and other known areas that s/he frequents.
Sometimes, however, a restraining order is a sword instead of a shield. Alleged victims apply for these orders to gain the upper hand in a family law proceeding. For this reason, many judges hesitate to issue separate restraining orders if there is a parallele proceeding in another court. Nevertheless, it may be necessary for a Raleight criminal defense lawyer to lift the restraining order.
Lifting an Order
Either the plaintiff or the defendant may ask the judge to lift a restraining order. A plaintiff’s motion may be relatively straightforward. Alleged victims of domestic assault do not have the right to drop criminal charges, but they do have the right to voluntarily dissolve restraining orders. The motion typically highlights some key points, such as the voluntary nature of the request, the desire to resume contact with the defendant, and the plaintiff’s lack of fear, but the motion does not delve into the specifics.
On the other hand, if the defendant wishes to lift the restraining order, a Raleigh criminal defense attorney must state the reasons why it should be lifted. Generally, there is a hearing after the motion is filed, and a judge decides whether or not to dissolve or modify the order. Both parties may present evidence, challenege evidence, and make legal arguments.
The moving party generally has the burden of proof. Common evidence in motions to lift restraining orders includes things like:
- Documentation, such as paystubs or completion certificates
- Witness statements
- Proof related to child custody and visitation issues, if these things are relevant to the restraining order
- Records from parole officers and other law enforcement authorities attesting to the defendant’s criminal background
Essentially, a restraining order is designed to be a temporary protective measure which preserves the status quo until a judge hears both sides of the story. Once the full truth comes out, many Wake County judges will rescind restraining orders, at least in part.
If you have been arrested for domestic violence in North Carolina, schedule a free consultation with the Raleigh criminal defense attorneys at Sandman, Finn & Fitzhugh, Attorneys at Law. Go online now or call us at 919-887-8040.