On this page we discuss the preparation you need to make sure you have completed before a final protection order hearing is convened in a civil court. Some of the info on here may be helpful in custody cases as well. Of course, a lawyer with knowledge and experience of domestic violence issues is your best bet for legal representation. But should you choose to represent yourself, the following may also be useful. Read on to learn more.
Remember a witness can be a family member, an ER nurse, a doctor or a stranger who may have witnessed or heard the abuse. It may even be a child or children or a law enforcement officer, and so on.
A subpoena may be required for some witnesses to attend court. You can obtain subpoena forms from court clerks and it will have to be signed by the judge/ Individual states have different rules regarding the methods the subpoena must be served so make sure you establish this information with the judge or the clerk of the court. In some areas, someone over the age of eighteen can serve it, or a process server can. But in other states, it has to be delivered by a representative of the sheriffs’ office. You should inform the judge if people who have received a subpoena have not shown up for the hearing. You may request the judge to postpone the hearing until the people who have received the subpoena appear.
Evidence And Documentation
Every state has their own laws on what evidence may be used in court. It may be the case certified copies of documents for them to be valid or you may only be able to use selected excerpts from the document. You may have to get a subpoena to obtain reports from doctors, hospitals and police. And it may be the case the documents have to be mailed to the courthouse instead of yourself. Rules of evidence can be very complex but in the majority of states evidence can include examples of:
- Court testimony, be it from your witnesses or from yourself
- Medical reports regarding the injuries you suffered from your abuse
- Police reports from when the police were called
- Photos of your injuries, ideally dated from when they were taken
- Broken or torn household objects from the person who abused you
- Following an incident of domestic violence, photos of the condition of your household
- Images of the weapons utilized by the person who abused you
- The audio from the 911 calls you made (these may have to be subpoenaed)
- Criminal conviction documents of the person who abused you. These will have to be certified copies obtained from the clerk at the criminal court
- A calendar or a personal diary or journal that documents the abuse you have suffered
- As long as it is permitted by the rules of evidence in your state that may assist in convincing the judge.
Remember the greater amount of evidence, the better it is. Nonetheless, if you have witnesses or documents, remember your testimony is evidence as well – so do not be perturbed if that is the only evidence you have.
Telling The Story
Experiencing the abuse is different than having to present it in a manner that represents the experience in a clear and organized way. You can learn to do this by practicing in front of a mirror or another person – this may also help you feel less apprehensive when you appear in front of a judge. This process may also help you recall new details about your experience.
Practice speaking clearly and putting the events into your own words. Think of the following:
- Violent incidents
- Threats of violence
- Stalking behaviors
- Harassing behaviors
- Tell the judge where you were hit, how many times and the injuries and pain you experienced
- Whether or not a weapon was used
- Do not paraphrase if it can be avoided. Try to use exact phrases and be as specific as possible
Forming an outline with notes of the history of the situation can be very helpful, Some states will allow you to refer to those notes, but you may not be permitted to read the notes. You may take notes if the judge permits if you need, for example, to remember a certain date. But be ready to give testimony if the judge says you may not do that. In situations where a child or children are involved, it may be a good idea to speak with a lawyer or someone in your state who works as an advocate in domestic violence cases regarding the best ways to present abuse the child or children may have suffered.
Presenting Cases For Custody
Each state has factors that a judge considers when determining custody and will place paramount importance of the best interests of your child or children. The preparation of evidence is very important as the judge will consider this when making his determination. Some states will use an individual known as a custody evaluator to interview the parties involved. On the day of the hearing itself, remember to do the following:
- Be punctual
- Make sure your witnesses are present and prepared
- Ensure your evidence is ready
- If witnesses or documents that have been subpoenaed and are not in the court, let the judge know
- Dress in a manner similar to that as you would for a job interview
- Addressing the judge appropriately (using the phrase: “Your Honor” and although the abuser may say upsetting things, remember you will have the chance to tell your story to the judge
- You may have to spend all day in court so be prepared
- If you do not have a lawyer but the abuser does, request a continuance from the judge so you can then find a lawyer
- Should the abuser intimidate you or sit next to you, you may request the court staff to keep the abuser away from you
- Stand when the judge enters or when he bailiff requests it
- It is ok to express emotion but try to remain calm
- Take some deep breaths when you feel tense
- Tell the truth, without fail
- Do not answer a question unless you understand
- Do not let the abuser or their legal representative distract you from telling your story
Courtroom Order Of Events
There may be a few variations but here is the standard order:
- You will be sworn in by the bailiff.
- As the plaintiff you will get to tell your story and enter evidence you have first.
- You may be asked questions by the judge or the lawyer of the abuser/ When under this cross examination they must be answered in a truthful manner. Remember these questions are leading in nature meaning they require a “Yes” or “No” response. If you think a question being asked is an irrelevant or object to certain questions – remember a knowledge of the rules of evidence and the kind of questions allowed may help.
- When you have finished, your witnesses may take the stand. You can ask them questions and then the judge, the abuser and his legal representative may do so. If the rules of evidence are violated by the questions asked of your witnesses, you may object.
- The defendant will then give their side which may be a very different interpretation of events than yours. The rule of objection as described above also apply.
- You and the judge may then ask questions – again, questions are asked in a leading way.
- The judge will then decide. He may take a recess before the final decision is made. It may be over a few hours or even a few days or weeks before a final determination is made.
- If the judge grants you the restraining order, he may sign it at the time of your hearing. Obtain a copy, review it and if you have any questions, ask the judge. When the judge is not making a decision that day, ask them to extend your temporary restraining order.
Source: “Domestic Violence Orders of Protection.” WomensLaw.org, 10 Jan. 2020, www.womenslaw.org/laws/az/restraining-orders/domestic-violence-orders-protection.
Contact Our Order of Protection Lawyers in Scottsdale
If you are dealing with a restraining order or are thinking of filing for one, contact Canterbury Law Group today. Our dedicated order of protection lawyers in Scottsdale will ensure thorough preparation for your restraining order hearing, or defense from same, and help you navigate the tricky legal issues that inevitably arise.