The mother of my child accused me of Domestic Violence. This is the third time this has happened. The first two cases I pled no contest as I agreed on a plea and did not want to do any jail time. This third time I decided to fight it as the allegations were false. Unfortunately, I was found guilty and was sentenced to jail time. She also filed a restraining order against me which included my daughter and the hearing took place while I was incarcerated. Can I appeal this restraining order? How would I start?
In order for the restraining order to become permanent, the moving party has to cause you to be served with notice of the hearing. She knew you were in custody and so the failure to give notice to you was a little fishy on her part when questioned by the judge. I would go to the self-help desk at the courthouse (DV restraining orders) for guidance on requesting a rehearing - your cause being that she knew where you were and avoided any chance of you challenging the order by misleading the court.
In order for a restraining order to be granted, she would have to file proof that you were served with the notice and copy of the restraining order. There are self help centers that can assist with your issue. Otherwise, definitely retain an experienced family law/criminal defense attorney.
When a person requests a restraining order he/she has to prove that the other person has been given notice of the hearing. Personal service of the application and temporary order is required. If you were in custody she could have easily had you served. You can petition for a re-hearing to invalidate her order based on lack of service.
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