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An Individual Can Directly Approach Family Court And Ask For A Restraining Order


Interviewer: Will there always be an arrest?

James Abate: No. You can go directly to the Family Court and you can just ask for the restraining order. In that case, there are no criminal charges, there’s no criminal system involved, like they’re just a Family Court.  If you go to the police though and file a restraining order through them, there is most likely going to be a criminal charge started as well.

The Difference Between Domestic Violence and Domestic, Infantry and Family Violence Charges

Interviewer: What’s the difference, when I hear the term “Domestic Violence” and then I hear Domestic infantry and family violence, is that all lumped into the same thing or they’re completely different?

James Abate: Yes.  If there is a domestic relationship and that can be father and son as well as sometimes roommates can be considered in a domestic relationship that will require a protection. It’s usually going to be boyfriend/girlfriend, husband and wife but it can be dad/mom, mom/daughter, father/son. It doesn’t always have to be a marriage; it can be a dating relationship.  It can sometimes be other situations.

If Someone Changes Their Mind About Pursuing a Restraining Order, the Courts Usually Relent

Interviewer: What about if the person, like, say if someone says “Hey, you know, this is case that I’ve involved the police in this and they say “Okay, I changed I mind, this isn’t going to happen”, can they do that and does that happen sometimes?

James Abate: Yes. It does happen; it can happen.  It is scrutinized by the Family Court judge to make sure that this is not a situation where someone is being threatened with further abused and to dropping the charges or dropping the TRO.  But they didn’t certainly take it into account; the judge does not have to drop it.  Once it’s in the court system, they can keep it going but in a number of cases, someone does decide that the repercussions are too serious or they think that the person will just leave them alone, they’ve made enough of the point, so yes, the charges can be discontinued in the Family Court.

If Criminal Charges are Associated With a Domestic Violence Case, the Prosecutor and Judge May not Drop Charges in the Domestic Violence Case

Keep in mind there are also the criminal charges in many of these cases.  And what can happen is that the prosecutor and the judge in the criminal matter may say “No.  We are not going to permit you to drop the charges; we’re going to keep the case going”.  So, they will take into account the victim’s wishes but they’re not controlling.

The Qualities to Look for when Retaining a Lawyer to Handle a Domestic Violence Case

Interviewer: When someone’s speaking out a lawyer to assist them with their domestic violence case, what are some qualities in an attorney that they should be looking for?

James Abate: They want to find someone who has experience with the domestic violence trials and in superior courts.  Each case is going to be a little different.  There are some cases where, to be quite honest, someone could require a lawyer to handle their domestic violence case who is also extremely knowledgeable with family law.  One instance of that is we had a client who — they were an Indian couple and the husband was concerned that the wife would take off to India with his son, and there is no convention or treaty between the United States and India for getting the child back, so he would never see that child again.  We had to go out and get a seizing of his passport and Indian national identity card.

With Cases Involving Criminal Charges a Criminal Defense Attorney is More Important

There are cases where the more serious issues come up in the criminal courts, and what’s going to happen there is in that case, the criminal lawyer is more important. The domestic violence cases span family law, international law and criminal law, so which area of the case is going to be best for you and what kind of lawyer you need, it’s a key to the situation but I would say that you’re normally going to be dealing with criminal lawyers and the family lawyers and that really depends on which type of case you have listed, which defines which of those practitioners you need for your case.

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