what motion do I file to terminate restraining order?

[porfavor]

we have a 1 year old restraining order on each other that we don't respect since we keep calling each other, ....
I want to terminate it.
what type of motion do I need to do ?

[dancurry]

Please clarify. there is ONE restraining order or TWO?

>we have a 1 year old restraining order on each other that we
>don't respect since we keep calling each other, ....
>I want to terminate it.
>what type of motion do I need to do ?
>

[spinner]

we have 1 mutually agreed restraining order

[Davy]

.

[spinner]

the government center said there are no such motion. once a RO is on place, it can't be removed :(

do you have examples of that motion and how/where to file it ?

[Davy]

Spinner ... of course I have no idea what jurisdiction you're practicing in but it seems fundamental to our system of justice that whatever has been ordered can be lifted.  Is the RO non-removal issue an actual statue ?  Confirmed by the supremes ?

In the day, an Illinois attorney (on my behalf) prevailed on his very well written  "Motion to Squash" in a state district court to address stopping all proceedings for substantal lack of divorce/custody jurisdiction.

As I recall, the atty explained it was a serious way to argue whatever .. ie opposing motions, etc.  The motion dated back to Abraham Lincoln and is still in use today (1985).  Apparently, young Abe was traveling the circuit .   It was a hot summer afternoon.    Abe was not able to effectively argue his case due to noisy disruptions and he verbalized a Motion to Squash .... hogs were rooting and pigs were squealing underneath the courtroom.

[dancurry]

NO such thing as a mutual restraining order. One person sought it and was granted it. That person has to agree to drop it. In CA, a motion to dismiss will suffice. Though it is necessary for her to agree in court to dismiss the the restraining order.

Just the same. Only one person will be charged for violating that order.

Good luck.

[spinner]

I am sorry to say but there is such thing as a mutual restraining order.
I have it in front of me
mutual restraining order.

he shall not go 1 block to her house and she shall not go 1 block to his house.

I am reading it, I have the paper in my hand

[sdbleve]

Here in CA there are a few different types of orders.

1. Judicial Order that can state that subjs must stay away from each other. This can be a "mutual" but concequences (sp) for breaking it are only enforceable by the court.

2. TRO (Temporary Restraining Order). Short term order (usually a few weeks in length) usually obtained by a party by going to the court and going in front of a Judge on an Ex Parte basis. Note this order is not enforceable until the restrained subj has been properly served the order. Once served, if the restrained subj violates the order, a crime report can and will be taken by local law enforcement and the violator can be arrested for the violation. (With the order listed in #1, a police officer can not arrest the subj, there is no way for him to be assured the order is still valid).

3. PPO (Permenant Protection Order). These orders are usually good for a few years. After the protected person receives a TRO, the court will set a court date for the judge to speak to all parties involved to determine if there is sufficient evidence to warrant a PPO. If so, the judge will usually order one, and the restrained subj is served right then and there in the court. If the protected person violates the order after that, he is subject to arrest.

***Note, I work as a PD dispatcher, and I deal with this all the time...If somebody has a Protection Order against them, they had better not be caught in the presence of the protected person by a police officer. Often a subj will get a protection order, and then the two subjs make up. Well, then they have a fight and the police are called. It does not matter that the protected person invited the restrained person into the situation. The restrained subj is going to jail, do not pass go, do not collect $200.

Another issue that is not understood is the fact that a protected person can not violate the order. However, their actions can lead to the order being invalidated by the court.  

So long story short, yes a protection order can be lifted, quashed, what ever you want to call it.  In fact I ran an order not 2 days ago where the order had notation that it had been lifted by the court.

Hope that helps

[annemichellesdad]

I won't presume to know all the answers to a question such as as this However, I have just such a motion filed at this time with the courts.

My ex asked the court for a restraining order. We had no custody order in place and she was trying to keep me away from our daughter. I was persistent in my (peaceful) attempts to see my daughter. She claimed it was "harassment".  At no time did I threaten or act in a violent fashion. The TRO that she received was a "stalking" order. (Still amazed at this.) It was good for ONE YEAR.

During the course of the year, she continued contacting ME. Once, we both had to appear in court at her request; she wanted attorney fees for an action for support modification which she had brought against me (and dismissed!). She allged that I approached her in open court and handed her a check for the amount she wanted, and that doing so violated the order. (At this point, I had not seen my child for a year. We believe that she wanted me in jail over the holidays in order to avoid being confronted with Christmas visitation.)

While this issue was pending, the 1-year TRO concluded. She moved that it be made PERMANENT on the basis of the *alleged* violation. In turn, the judge made the order permanent on exactly that basis.

Shortly thereafter, the charge against me was brought to trial. After talking with both me and my ex, the prosecutor, who appeared visibly VERY upset at the frivolity of the charge, filed a motion with the judge to nolle prosequi (dismiss) the charge against me.

Following the dismissal, the ex continued to call me, email me, solicit me to meet her in public, approach me in public and enjoin me in coversation, etc.

After months of this, I finally submitted a motion to the court asking that the order be terminated (the term "vacated" could have also been used), on the grounds that

1) a substantial change in circumstances had occurred since the order in which the grounds for the order (the charge) had since been dismissed

and

2) that my ex herself had "vitiated" and undermined the purpose of the order by continuing to contact and solicit me repeatedly and through various means.

Interestingly, the motion was filed on the morning of Monday the 25th of September. Her response would have had to be filed on Wed the 25th of October. As of today, the 28th of October, I have still not received a copy of the response (and the mail has already arrived). While one COULD still be forthcoming, I believe it's possible that she might be intending not to respond at all and simply accept the the possibility of a dismissal by default. The only alternative would certainly be that she contest the dismissal, driving a hundred miles to my county for filing, apperances, etc.  In so doing, she stops short of "endorsing" any dismissal with a motion herself, but seems willing to accept one on my own initiative.

I say all this to point out that:

1) if MUST have a basis for asking for a motion to be vacated

2) you cannot re-argue facts brought up at trial

3) you cannot introduce any facts which were known or could have been reasonable known at the time of trial

4) if you ex truly doesn't care about the order, she may not contest it

5) if you ex is willing to have the order dismissed herself, all she has to do is file a motion asking that it be (that, in fact, is the simplist way)

Good luck!

[spinner]

see, the problem is that I went to the office of the harasment order, .... downtown.
There I was told that there is no such motion to dismiss.

So I tried to write my own but when I went to the desk to file the motion they told me I could not file such a motion that it was non existent and thus refused to take it from me.

So I am definately looking to file one, the fact is that you file a motion with what ever title oyu want and that get you in front of the judge who wll rule or not on it.

But if I can't file the motion, .....

In Hennepin in MN , harasment order are in the criminal court and not familly court.

I need to file the motion with criminal court and they simply won't take it so I am at a loss here, ....

[annemichellesdad]

Did you call it a "motion to dismiss"? If so, that COULD be part of the problem. The term "dismiss" generally refers to criminal charges and civil charges and allegations. In contrast, a final order cannot necessary be "dismissed". Rather, it must be "vacated" (more common) or "terminated".

[spinner]

yes dismiss but it goes further than this.
I asked them what I could file and the answer was that there is nothing that can be file to remove that order until it expires at the end of the 2 years

they would not accept any kind of motion. I asked if I could do dismiss, vacate, remove order, contest it, .... they said that since the order was in place for over the 90 days to contest there was nothing I could do.

The order has been in place for 1.5 years but was never enforced, ... we call each other for our kid and she drop him at my house, ....
I am contemplating custody motions in court and that is just making things harder to have a RO on file which is why I want to have it removed since it is not enforced.

I am considering simply filming her when she drops the kids hand have the cops arresting her. That's the only way I found to remove that dumb order.

[annemichellesdad]

Sounds wierd, but that could be the state's law on the issue. Don't take their word for it... look it up in the state code. Your state may (should?) have an online database of the complete code, along with keyword searchable features.

Georgia does not officially recognize the vacating of a protective order per se, but they do give the courts the discretion to reverse their own decisions within the same terms.

Another odd thing is their "not accepting it". Clerks are not suppose to give legal advise. Sounds like that is what they're doing here. Again, don't take their word for anything... find your state code and KNOW what it is that you're doing. It's going to vary too much from state to state to get a definitive answer here.

[spinner]

Here is the statute.
http://www.revisor.leg.state.mn.us/data/revisor/statutes/2005/609/748.html
I do not see anything about vacating one.

[annemichellesdad]

There's nothing there about vacating one, but there's nothing there PROHIBITING the vacating one, either.  What you'll need to find is either a statute of court precedent that deals specifically with the vacating of a judgment in general.

What does your ex say about submitting such a motion? Will she agree to do it with you voluntarily?

[spinner]

no, she doesn't want to remove it.

Which made me worrying about it. Either she is simply not smart and controling (which can be the case) or she might want to pull some "trick" on me for halloween :)

[dancurry]

Well that's a first for me. I've seen crap loads of restraining orders and never seen one that applied both ways.

You must have appeared at the hearing then. Most restraining orders are uncontested. That's probably it.

I doubt our local judge would issue such an order. He would tell the other party to file their own restraining order.

I stand corrected, but atleast I'm standing. :-)