Annually, there are over 10 million domestic violence cases in the United States. This means that 20 people attack their partners every minute. Survivors of domestic violence have the right to lay criminal charges against their partners. More importantly, they must immediately seek a protection order and legal help.
However, it’s not uncommon for survivors to request the protection order to be lifted, as they may have forgiven their spouse and want to reconcile.
Regardless of their decision, their lawyer must ensure that they’re making an informed choice. As the attorney, you must discuss with them the consequences of dropping the protection order. This includes informing them of their legal rights and responsibilities after a divorce, such as child custody and child support.
Lifting the order may have severe consequences if the client has sole custody of their children. This is especially true if the spouse has visitation rights.
How common is violence among intimate partners?
It’s an understatement to say that Intimate Partner Violence (IPV), which is the most common subcategory of domestic violence, is a serious problem. Centers for Disease Control and Prevention (CDC) noted that IPV affects millions of people. Here are some more specific and startling statistics you should know:
- 26% of men and 41% of women experienced stalking and physical and sexual violence by their partners.
- More than 53 million men and 61 million women experienced psychological aggression by their intimate partners within their lifetime.
- 5% of men and 14% of women reported having been stalked by their intimate partners within their lifetime.
- One out of five homicide victims was killed by their intimate partner.
The National Coalition Against Domestic Violence (NCADV) also shared the following statistics showing the seriousness of domestic violence:
- About 20 people are physically abused by their intimate partners per minute, which means that there are over 10 million abused men and women per year.
- One in every ten women has been raped by their intimate partner.
- One in every 25 men and, one in every seven women, has been injured by their partners.
- Domestic violence hotlines receive over 20,000 calls per day.
- If a gun is involved in cases of domestic violence, the possibility of homicide increases by 500%.
All of this points to one fact: IPV, and other forms of domestic violence, doesn’t discriminate when it comes to gender. Anyone is susceptible to violence and, therefore, the lawyer’s moral and legal duty is to shield the survivor from further incidents of assault. Generally, the quickest remedy is to get a protection order, which is issued to protect someone from harm.
Protection orders could be temporary or permanent. The judge could also issue an ex parte temporary order, which means that the order has been issued without first informing the other party. This is generally done when the judge believes that providing notice to the other party may further jeopardize the survivor’s safety.
However, there are instances when your client may ask you to have the protection order revoked. As a lawyer acting in your client’s best interest, how can you help? How can you persuade the court to revoke the order?
Reasons to Dismiss an Order of Protection
If your client wants an order of protection to be dismissed, which was issued against a former spouse or family member, you must demonstrate that the abuse was not severe enough for the order to have been issued in the first place. The judge will look at the circumstances and consider whether the fear of harm is valid.
Here are some of the reasons that could justify the dismissal of an order of protection:
If the client is the alleged victim
There are cases when it’s necessary, such as when the order affects a child in the relationship. It’s also appropriate to lift a protection order when the subject of the order is the person solely responsible for taking care of another person.
If the client is the defendant
The defendant could petition the court to dismiss the protection order when it’s no longer necessary. They can also ask the court to revoke the order if they think that it was improperly issued. In either case, the defendant must file a motion, and the judge will decide whether they will hear the case.
If the judge grants the motion and schedules a hearing, the protection order becomes immediately unenforceable and void. However, it’s important to note that only the court can dissolve an order of protection.
Tips on How to Prepare For a Protection Order Dismissal
Protection order dismissals can be very frustrating, especially for the party who requires protection, such as survivors of domestic violence. The judge may dismiss the order even if there’s evidence of domestic violence, but think that protection is no longer necessary. A lawyer should have enough evidence to convince the judge that this is not the right course of action.
If the client is the survivor of domestic violence, and requests to drop the protection order, the lawyer must protect the client’s interests by doing the following:
Give legal counsel to the client
Discuss the consequences of dropping the order of protection with your client before proceeding to court. If your client is the survivor, explain the process thoroughly and help them determine if dropping the protection order is the right course of action.
If your client is not the victim, here’s a list of things you can do to facilitate the process:
- Discuss the nature of the complaint and devise a strategy to address it.
- Discuss the evidence supporting your claim that the violence did not occur.
- Review relevant case law and examine how courts in your jurisdiction handled similar cases.
- Look at any documents that may be relevant to the case.
Bring a motion to the court
You must bring a motion in court to dismiss the protection order. The client should also prepare a statement explaining why they want the protection order to be dismissed.
The court will decide on the motion. You may need to attend the hearing in person to represent your client. If you can’t participate in the hearing, you may be able to send a proxy, who could be another attorney working on the case or a member of your office staff. This way, you can have the judge hear their side of the story and make a fair decision.
If you think that the protection order is too broad or burdensome, you can file a motion asking the court to amend it. After the motion has been filed, the court will decide whether to set a hearing to discuss its merits.
If the court sets a date for the hearing, your client can appear before a judge and make their case. During this process, you must remain professional and respectful towards your client and the person that has assaulted them. Your goal is to ensure a smooth sailing process through what could potentially be an emotionally charged situation.
Gather supporting evidence
When you’re representing a client who is the subject of a protection order, make sure that they don’t get into further trouble with the law. This is especially true if they’re defending themselves in court. You should also gather supporting evidence about the circumstances mentioned in the initial protection order application.
You can expedite the protection order termination process by providing evidence that the defendant acted in good faith, such as attending anger management counseling or domestic violence treatment.
Give all the evidence to the judge
A lawyer should present evidence, such as witness statements, photos, and videos, in a way that will help the judge understand what happened. It should also clearly explain why a protection order is no longer necessary.
The judge will then review all the evidence and decide whether to dismiss the protection order. If the evidence provided is insufficient, the judge may not dismiss the protection order.
Always Provide the Best Advice to Your Client
The ratio behind statutes and laws is for “those who have less in life to have more in law.” The best example of this principle is a protection order, which serves as a legal shield to protect individuals from those who have harmed them.
However, the right to be protected by such an order is not absolute. The person filing the complaint must provide evidence that they require protection. The court will then determine whether the evidence is strong enough to issue the order, whereby another person’s freedom of movement will be heavily restricted.
As a lawyer, your responsibility is to protect your client’s rights in accordance with the spirit and the letter of the law. The key to a great lawyer-client relationship is knowing what your client needs, and how to use the law to protect their interests. If you understand your client’s goals and desires, you can give them proper legal advice.
You should listen to, and empathize with, your clients even if you don’t share their points of view. You have to educate them on their rights to help them make an informed decision. Your legal advice can undoubtedly save lives.
By The Personal Injury Center
The Personal Injury Center has been offering legal resources to personal injury, medical malpractice, and class action plaintiffs for years. As a notable database of tort lawyers, the center has helped clients lawyer up and fight for the compensation they deserve. For more information, visit our website today at www.malpracticecenter.com.
Sakif is a lawyer licensing candidate in Ontario, and the author of Tort Law in Bangladesh: Applications and Challenges. While he has an interest in personal injury law, he is currently practicing immigration law with a boutique firm in Toronto. Throughout his career, he has helped clients overcome inadmissibility issues, drafted legal submissions for their refugee appeals and filed mandamus applications with the Federal Court. Though primarily a practitioner, Sakif also combines his research skills and his passion for writing to contribute to legal sites.Published on: