Petitioner (spouse) filed a civil order of protection against me. I will be fighting the permanent PO in court in about two weeks (pro se). The petitioner has a history of calling police vindictively, recanting (in a previous case against me). Also, on the petition she completed, she refers back to this recanted (and dismissed) case, one she stated was the most “serious” incident. Would it be legal for the judge to allow the petitioner to refer back to this case which was a result of lies, and was dismissed, recanted?
You need to convince the judge that you do not pose an ongoing threat to your spouse. The best kind of evidence is evidence that establishes that.
You can certainly point out that the prior allegation was recanted in the past. You could even introduce witnesses and evidence to establish that the allegations were actually untrue. However, you need to be cognizant about how you present to the court because the most important thing for the judge to determine is not what happened in the past but whether you pose an ongoing threat.
For the PPO, there is a two prong test: whether (1) you committed acts constituting grounds for issuance of a civil protection order and (2) that unless restrained will continue to commit such acts or acts designed to intimidate or retaliate against the protected person.
The judge can certainly consider past allegations, even if charges were never filed, recanted, or dismissed. It is important to remember that a criminal case requires proof beyond a reasonable doubt, while a civil matter such as the issuing of a protection order operates at the much lower standard of a preponderance of the evidence. There are many circumstances where a person may win a criminal case our have charges dismissed but then lose under a lower civil standard in a subsequent lawsuit. Having a lawyer on your side would help you be able to present evidence that these prior allegations were unfounded.
You may wish to represent yourself in defending against the protection order. However, I recommend spending an hour with an attorney prior to the hearing to discuss the facts, your possible defenses, best evidence, court rules, review the charges, review the statute, etc. This hour will greatly increase your likelihood of success in preventing the Protection Order from becoming permanent.
Donald at Robinson and Henry, PC. The above information is provided to you “AS IS,” does not constitute legal advice and we are not acting as your attorney. Because we do not have a full view of the facts in providing the above information we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites. Legal advice must be tailored to the specific circumstances of each case and the information provided to you may not be an appropriate fit in your case. Nothing here is provided or should be used as a substitute for the advice of competent legal counsel. This postings is for educational and information purposes only, not legal advice or legal opinions. The information is not intended to create a lawyer-client relationship between the author and you.
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