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Domestic violence cases are, and must be treated as, dangerous emergencies. The public has been shocked and saddened to learn of the many domestic violence cases that result in serious injuries and/or death. Even when the domestic violence is not fatal, children in the home are often scarred for life emotionally. Most of the victims of domestic violence are women, but men can also be victims.
Temporary Restraining Orders are among the most important legal remedies available to victims of domestic violence. They are court orders against a reported abuser that prohibit contact or violent or abusive conduct against the victim. The courts have deliberately made the application process simple and designed to be used without the need for an attorney. Victims must explain why they need a temporary emergency restraining order. This is done by giving examples of violent or abusive past behavior. Victims have complained that judges have improperly denied requests for temporary restraining orders thereby exposing them and, in some cases children, to dangerous physical and emotional injuries.
THE LAW obligates judges to give their reasons for denying requests for temporary restraining orders in domestic violence cases. Supporters of this law point out that without a written explanation for a denial, we cannot know the judge’s reasons for refusing to issue the order. When judges state their reasons, victims and their attorneys can determine if it was improperly denied and can consider an appeal. The law also gives the victim the right to have a hearing within 20 days after a denial of a temporary restraining order and to ask for an order prohibiting the abuser to contact the victim.
Some critics of this law say that people involved in heated family and domestic legal disputes often use unnecessary temporary restraining orders merely to punish the other party. They say that parties often lie to convince judges to grant the restraining orders which they can later use in divorce or child custody proceedings. Critics also point out that Emergency Temporary Restraining Orders are issued and effective immediately without giving the other party an opportunity to respond for 20 days. During that time, their freedom to engage in certain activities including returning to the family home or having contact with a spouse and/or children is limited or prohibited.
These critics fear that if busy judges are required to write the reasons for denying Temporary Restraining Orders, many judges will simply grant most or all such requests instead. They say that granting unnecessary or unjustified Temporary Restraining Orders unfairly requires the restrained person to be listed in State and Federal Family Violence Registries. It is almost impossible to be removed from these registries even if it is later determined that the information supporting the Temporary Restraining Order was not true.
As you can see, the decision to grant or deny a Temporary Restraining Order can be a very difficult one to make. Judges have the powerful authority and the enormous responsibility to make these decisions. Now, under the law, they will have to let us know the reasons for denying a request to issue one.
JESS J. ARAUJO, ESQ.
Contact our law firm if you have further questions.