According to Simon Kubiak, an Albuquerque-based domestic violence attorney in practice at Kubiak & Kubiak, the most important thing that people should know about restraining orders in domestic violence cases is that there is more than just one type.
In fact, there are two main types of restraining orders that household members can seek against each other in basic domestic violence cases held criminal and civil. With both types, the alleged aggressor, also known as the defendant, is always the one being restrained against contacting or visiting the alleged victim, or the plaintiff. Although the parties in a criminal case are referred to as the plaintiff and the defendant, these same parties are referred to as the petitioner and the respondent in civil court cases.
Whenever there is an alleged act of domestic violence in a home and the petitioner and/or plaintiff files a police report about the action, the state or the cops will charge the defendant with battery of domestic violence. At that point, there will be a temporary restraining order put in place that prohibits the defendant from talking to, living with, residing with, visiting, or texting the alleged victim. That is to say, the defendant cant get in contact with the plaintiff or do anything else during that time. In a criminal case, criminal court is the right place to file for a restraining order.
On the other hand, some victims of domestic violence can choose to take their cases to civil court and apply for a restraining order that way instead. A restraining order filed through the civil court would be a civil matter, which means that it is an issue between the two affected parties, and that the state is not necessarily involved.
Being granted a domestic violence restraining order in a civil case is not typically very difficult, just as long as the victim can demonstrate through the petition that he or she has a fear of an act of domestic violence by the respondent. In other scenarios, she only needs to show that she was the subject of an act of domestic violence in the past.
In Albuquerque, a domestic violence lawyer can usually help the petitioner put this documentation together to ensure that the restraining order goes through. If the judge agrees and determines that the petitioner has a valid concern, then he will issue a temporary restraining order that prohibits the respondent from talking to, writing to, visiting, texting, calling, or harassing the petitioner just like in a criminal case.
Around 10 days after a judge issues a temporary restraining order in a domestic violence case, he will hold what is called an extension hearing. It is at this extension hearing where the defendant or the respondent, depending on the court system, will be given the opportunity to go into court and defend himself against the charges in question. This extension hearing is especially important because it is at this hearing when the judge will decide whether to extend the restraining order for anywhere from one to five years, depending on the circumstances of the case.
Domestic Violence Lawyers
For the best possible outcome, I recommend hiring a domestic violence lawyer who is able to identify whether you have a criminal or a civil restraining order filed against you and how to best defend against either one of these types of orders. How you defend against the order is different depending on the court, and what the orders mean is different, too.
It is important to hire an attorney who is familiar with the type of court you are going to be in, because there are different rules of procedure in metro court, for example, than in district court. In addition, there are different judges and different district attorneys to deal with. In district court, there are entirely different rules of procedure that must be followed in order to get a restraining order lifted since defense attorneys not only have to deal with judges, but also victim advocates and district attorneys as well.
If you are the defendant or respondent in a domestic violence case, then its a good idea to seek out and engage an attorney who knows what he is doing, has done it in the past, and knows how to get in, out, and around whatever courthouse your case is being held in. For defendants in Albuquerque, I recommend contacting the Kubiak & Kubiak law office for a consultation with a qualified attorney.
This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.