Fighting a Restraining Order - Temporary Vs Permanent Overview
- Author Adam Jenkins
- Published May 25, 2010
- Word count 501
When discussing divorce rights for fathers, advice on fighting a restraining order usually rears its ugly, expensive head. That's because, unfortunately in today's society, in most divorce cases where a father is trying to win a custody battle, a common legal tactic is to file a restraining order against the dad involved.
However, the problems involved are immediately apparent to the victim of phony allegations, including that:
your ex will have immediate control of child custody
there is then a potential to increase maintenance payments
it causes extra pain, hassle and embarrassment to her ex-partner
It sometimes feels like you're being tied up and manipulated by your ex. Knowing what will happen in the weeks immediately following as you are fighting the case is of the ultimate importance. It can make the difference between winning a custody battle, and losing the right to see your kids entirely.
First of all, you should learn the difference between a judge granting a temporary restraining order vs. a permanent one. Temporary restraining orders are granted after an "ex parte appearance" in court by one party. For this reason, temporary restraining orders are sometimes called "ex parte orders" and are seen as a plague upon divorce rights for fathers. You don't have to be present in court, or even informed of the restraining order proceedings against you at this stage.
Normally, the ex parte order is granted. Your ex does not have to prove any of the allegations involved. The order is active from the day of the hearing unless a special exception is made.
The judge will, however, set a "Order to Show Cause" date for within the next month after the initial order was made. This is the event when she has to prove that the order should become a permanent one. That is your first chance to fight a restraining order by arguing that it has no merit. You will need to show plenty of evidence of this - witnesses, receipts in shops at the times you supposedly threatened her, printouts of emails which prove their content, and so on. Remember: fighting an order mainly rests upon that judgment.
If the judge rules that the order is valid on a permanent basis, it deals a significant blow to winning a custody battle and there is the risk that your ex wins full custody of your children. It may also impact your job, future career prospects, gun ownership, and travel arrangements, to name just a few elements of your life which could be negatively affected apart from access to your kids.
Note that the permanent order expiry date can be extended at future court hearings, so in theory you could be facing up to having this marker against your name for the rest of your life.
It's not something that makes those of us aiming to raise the consciousness regarding divorce rights for fathers sleep happily at night. And it causes untold heartache to thousands of American fathers (and their kids) each year.
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