In a Domestic Violence case, what starts out as a TRO (Temporary Restraining Order) can become an FRO (Final Restraining Order) if the Judge finds that there is a sufficient evidentiary need for the Court to issue the Order of protection. Defending a client from the issuance of an FRO requires that the client understand what the issues are, what the rules apply (or don't apply), and what burden of proof the Judge will be applying.
These proceedings are usually handled during a proceeding that occurs over a two-date period. The first date occurs within several days of the issuance of the TRO and its service on the client. During the first hearing date, it is essential for the client not to make any admissions or statements that the Court can take into consideration (usually against the party making the statement). The Court will ask if there is any hope of the matter being resolved without an evidentiary hearing. If the complainant is willing, the TRO can be dismissed. If there is no hope of dismissal, it is often better for the defense to request an adjournment of the evidentiary hearing. This allows the defense the time to gather whatever evidence is available to counter what the complainant is relying upon to support the petition for the FRO. It also allows the defense the time to get any witnesses who can testify for the client to counter what the complainant is saying. The Domestic Violence Act does not provide for discovery, as is typical in other types of legal proceedings, since these hearings occur within such a short time frame. If the defense is aware of either some item that will assist in the defense, or a witness that will not willingly come to Court to testify for the client, there are legal processes (via the subpoena process) to compel the production of the item, or the witness to come to Court. It is essential to the defense that the client advise the lawyer as early as possible of the types of evidence / or witnesses, that are available to defend against the issuance of the FRO. Among the types of proofs that a client should discuss with defense counsel to see if they are applicable in their case, are evidence of prior Domestic Violence history, the police reports of the incident, the 911 call, and the possibility of using expert witness testimony.
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