When a judge issues a restraining order, it's because she believes that someone needs protecting from the physical and mental abuses of another. The restraining order prevents the restrained person from making contact with the victim and usually prohibits any type of communication such as email, social messaging and phone calls. A restraining order is typically issued in cases involving harassment, stalking, assault and domestic violence. It lasts for a specific period such as one year or until it is dropped by a judge.
When Can You Apply to Lift a Restraining Order?
Most restraining orders are put in force for a specific period of time, such as one year. When the time period ends, the restraining order automatically falls away unless the court renews it. To renew the order, the victim must file an application with the court before the current order ends. There's a fair chance the court will renew the order if the restrained person does not contest the renewal application or if the judge believes that the victim is still in danger.
If you wish to have a restraining order dropped before the time is up, you'll need to file a request for dismissal with the court. You can ask for one of two things: an outright dismissal that cancels the entire order, or a modification removing some of the more onerous conditions.
Read More: For What Reasons Can You Get a Restraining Order?
What Evidence Is Needed?
A judge will not lift or modify a restraining order for no reason. The restrained person is going to have to show proof of consistently good behavior to the court, supported by evidence. That evidence might include pay stubs from a steady job, completion of a rehabilitation program, witness statements testifying to good behavior, reports from child welfare professionals related to child custody and visitation, and records from parole officers or other law enforcement officials. The court will look at all the evidence so it can be absolutely sure that lifting the order will not cause harm to the victim.
Who Can Apply to Have the Order Canceled?
Sometimes, the victim may want a restraining order lifted or modified. Restraining orders can actually be very restrictive in terms of dealing with bill payment or making decisions regarding the children. Perhaps the victim has changed her mind and wishes to start seeing the restrained person again. More commonly, it's the restrained person who seeks to have the order lifted for child visitation or other reasons. Either person can apply to the court and generally, the process for lifting the order is the same regardless of who files the motion.
What Is the Process for Lifting the Order?
Start by filing a Motion to Dismiss Restraining Order with the court that issued the original restraining order. The terminology and paperwork vary by state but generally, you'll need to identify reasons why the restraining order should be lifted, for example, the completion of a rehabilitation program such that the restrained person has changed his ways. Some states require that you sign the motion in front of a notary before filing it with the court. The paperwork will need serving on the other side, typically by having the sheriff deliver the papers for you. The court clerk can give you details of how to serve papers in your state.
The Judge Makes the Final Decision
Usually, there will be a hearing after the motion is filed. A judge will hear the testimony of both sides and decide whether to release or change the restraining order. If the victim agrees with the cancellation, is not afraid of the restrained person and wishes to resume contact, then this could help the case. The court will take the victim's wishes into account when considering the motion. However, even when both parties agree to the order being canceled, it's still the judge's decision. The judge will make changes if, and only if, she believes the restrained person no longer poses a threat.
Jayne Thompson earned an LL.B. in Law and Business Administration from the University of Birmingham and an LL.M. in International Law from the University of East London. She practiced in various “Big Law” firms before launching a career as a commercial writer. Her work has appeared on numerous legal blogs including Quittance, Upcounsel and Medical Negligence Experts.