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Common Client Mistakes in Domestic Violence Cases


Interviewer: What are some other common mistakes that clients might make that they may not even know of?

James Abate: There are people who drop a temporary restraining order because they just don’t want to trouble or they’re thinking everything’s going to be better now and it isn’t and they put themselves in further danger. It’s not the one incident.  They’re looking at the whole picture.  There are some forms of assaults which are so extreme that you’re going to get the restraining order, no matter what kind of case gets put on. I’ve had situations where someone had their eye socket broken, that’s an extreme amount of violence.  I’ve had cases where someone had their arm slashed to the point where tendons were torn with a knife, and that’s when where they’re actually going to look for the restraining order and the serious criminal charges.

Domestic Contretemps Do Not Validate the Issuance of a Final Restraining Order

I’ve had cases where there were less extreme situations but because there had been so many of these situations and they keep recurring, that’s what would happen. Now, there is also a concept called “Domestic contretemps”.  And what that means is that there are some situations where it’s just people being in a relationship.  There is one husband who texted his wife 140 times about something going on at school with their children and she wouldn’t respond to him.  She said she was being harassed and the judge said “That’s not him trying to harass you; it’s him trying to get an answer regarding his children”, It’s domestic contretemps. You could make the case and the under the law, if I were to text someone I am in domestic relationship with and say “You are a complete asshole”, that would be harassment. It could be but it’s not enough for the issuance of a final restraining order, it’s domestic contretemps.

Trespassing Can be a Factor in the Issuance of a Restraining Order

Interviewer: Could trespassing ever be considered a factor in a domestic violence dispute?

James Abate: Yes. In fact, I had a case recently where a boyfriend who just snuck into his ex-girlfriend’s home through the dog’s door and basically broke into her home. That was significant enough. First of all, that is a predicate act which would justify the issuance of a temporary restraining order and a final restraining order.  And it was enough for the ultimate issuance of the final restraining order because they had an extensive history. There’s a three-step process.  The relationship, that’s the easy part, the second part is a predicate act committed?  And that can be a number of things from assault to harassment, to stalking, to criminal mischief, to trespass but the fact that the predicate act has been committed isn’t enough.

In Order for the Ultimate Issuance of a Final Restraining Order it is Necessary to Prove it’s Requirement Being Imperative to Protect the Victim from Further Harm

There has also be a shelling that based on the review of the history that a final restraining order is necessary to protect the victim from further harm being committed. Let’s take an example.  Let’s say I slap someone I’m in a relationship with and I walk out and I say “I never want to see you again”, okay.  Could they be charged with assault?  Absolutely.  Could a restraining order be issued?  Yes, but let’s say this is the first time there’s ever been an exchange like that and I’ve communicated I never want to see you again, but then what’s the need for a final restraining order?  I’ve made it clear I don’t want to be near you again, there may also be reasons why I slapped you.

The Predicate Act and the Need for a Final Restraining Order Influence it’s Issuance

There are not good enough reasons to get you out of a criminal case but they explain things in the family court case. So, it’s those two factors of the predicate act, which is the easy part, but the hardest part is whether there is a need for a final restraining order to protect the victim from future acts of the domestic violence.

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