Modification or Dismissal of Mandatory Protection Orders
February 18, 2022 ⋅ Danielle Whitaker
Some of the most common questions that we get from clients have to do with the mandatory protection order that gets issued after someone commits a crime of domestic violence. Now this mandatory protection order prevents the defendant from harassing, molesting, intimidating, retaliating against, or tampering with any potential witnesses. But it also prevents the restrained party from having any sort of in-person or electronic contact with the protected party. This can often mean that even if the defendant and the protected party live in the same home, the restrained party isn’t allowed to live there until the protection order is modified by a judge to allow for contact.
In some cases, the protected party has asked for our help to dismiss the mandatory protection order for the sake of the defendant and their family; however, the only person who can modify or dismiss a protection order altogether is a judge. Which means that even if the protected party is the one to reach out to initiate contact with the defendant, the defendant can still be arrested for violating the protection order.
The Process to Modify or Dismiss
Since only judges can modify mandatory protection orders, the process starts with filing a motion to modify the order with the court. Once the motion is filed then a hearing date is set to go in front of a judge. The District Attorney needs adequate time to let the protected party know about the hearing, which can take a few weeks. At the hearing to modify the protection order, the defendant and their attorney will present an argument as to why the Court should modify or dismiss the protection order. Before granting modification or dismissal, the judge will likely consider the following:
- The wishes of the protected party
- The defendant’s past criminal history, specifically whether the defendant has previously been charged or convicted of a crime of domestic violence
- Whether the protected party and the defendant are married
- How long the parties have been in an “intimate” relationship
- If the parties have children together, whether modifying the order is necessary to allow the parties to co-parent
- If the parties operate a small business together, it may be necessary to modify the order to allow contact to prevent the business from experiencing undue hardship
- Whether the restrained party has complied with the terms of the protection order to date
- Whether the defendant has attended any domestic violence classes or therapy
- Whether the protected party has taken any classes geared towards victims of domestic violence
It is unlikely that the judge will dismiss the protection order in its entirety; however, the judge may be willing to modify certain provisions of the protection order to allow the parties to have in-person contact, electronic contact, or both. Even if the judge agrees to modify certain sections of the order to allow for some form of contact, they will usually keep the protection order itself in place. This means that the provision prohibiting the defendant from harassing, molesting, intimidating, retaliating against, or tampering with any potential witnesses remains.
The mandatory protection order, usually stay active until the final disposition of the defendant’s case. This means that the order will be active until the case is finalized (jury renders a verdict, a plea deal is finalized, or the prosecutor drops all the charges); although, some judges keep the order in place until a defendant successfully completes probation.
If you have more questions about mandatory protection orders or crimes of domestic violence, call Shawn Conti at Martin Conti Law today.