Move It or Lose It: Motions to the Court That Restraining Order Defendants Should Consider

Moderator

A recent respondent to this blog proposed that I look into motions to the court that restraining order defendants (or past defendants) might wish to make. He indicated that he managed to have an injunction that was filed against him vacated by presenting himself as more credible than the plaintiff in the case and that various motions he filed were instrumental to his success.

Motions endeavor to move the court to take a requested action (for example, to grant you more time to respond to or to vacate the case against you). A motion may be made orally (during a hearing, for example): “If it please the court, the defendant moves that the plaintiff’s restraining order be vacated on the basis that….” Or it may be made in a written brief submitted to a clerk to relay to the judge. Examples of various kinds of motions can be found on the Internet if you search diligently enough, and their language can be used as models for motions you may wish to file. The caption (heading) on your written brief(s) might look something like this:

Or it might be formatted very differently. Find an example of a brief submitted to your local court to use as a template.

In a motion you filed to respond to or oppose a restraining order, you would identify yourself as the defendant. The plaintiff would be the person who applied for the restraining order against you. Correctly identify the kind of motion you’re filing, the venue you’re filing it in (that is, which court), and the cause number (and judge, if applicable).

Clerks can’t provide you with legal advice, but they can answer general questions you have about document preparation.

You can easily work up a facsimile of an example caption you find in any decent word processor. Just peck around until you get the effect you want. Make sure everything is double-spaced and that the margins are wide enough for easy reading. Judges aren’t the sticklers for precise measurements that English teachers are. You’re trying to get points across not be given a gold star. Concern yourself more with persuasively conveying your points than with trying to sound like an attorney. Everyday language is fine.

The other thing to remember when filing motions (or any briefs to the court) is to make extra copies for yourself. Have a couple extra copies when you file, in fact, and see that all of the copies are time-stamped or that you get a receipt to confirm that you filed and when you filed.

An alternative to drafting motions from scratch is finding templates of legal forms for your state on the Internet that can be filled in online and printed out. Use these search engine terms and see what they return: your state + legal forms. A site sponsored by your local court system will likely pop up. If there’s a search bar on it, type in motion (or a specific kind of motion). You can also get blank motion forms from the courthouse.

Bear in mind that the worst that can happen if you file a motion is that it’s denied. Filing one in no way disadvantages you or put you in peril of some sinister counteraction. In other words, you have nothing to lose by acting. Here are some motions you may wish to consider:

  • MOTION FOR CONTINUANCE or MOTION TO CONTINUE
  • MOTION TO DISMISS
  • MOTION TO VACATE
  • MOTION TO EXPUNGE

Motions to the court for more time mean the same thing everywhere. What motions to dismiss, vacate, or expunge a restraining order may mean, how they’re qualified, when they can be filed, and whether they apply is going to vary from state to state.

At the very least filing a motion (or motions) will impress upon the judge and put the plaintiff on notice that you’re taking your defense seriously. And in all things brought before the court, impressions are paramount. (It’s on the force of impressions, in fact, that many restraining orders are obtained in the first place.)

Admittedly, this post’s title probably overstates the necessity of your filing a motion or motions. It’s just that I can’t resist a pun.

Copyright © 2013 RestrainingOrderAbuse.com

*Self-represented defendants might also consider familiarizing themselves with various objections that can be raised during trial.

12 thoughts on “Move It or Lose It: Motions to the Court That Restraining Order Defendants Should Consider”

  1. You’ve just given me the info I was searching for. Now we know all pros and cons of the form. I mostly use http://goo.gl/mLlMxP to edit my PDFs. I think it also allows you to to create fillable pdfs and esign them.

    Like

    Reply

  2. My ex boyfriend cheated on me. We have been talking about working it out. This apparently causes the woman he cheated with “emotional damage”. I guess she thinks it didn’t damage myself or my kids when she was sneaking around. So she got a civil no contact stalking order against me saying my emails (to my ex) constitute stalking. Her presentation of these emails is a violation of the eavesdropping law in Illinois. I am currently bringing her to court to reverse the order. She has made motions asking the court to keep me from talking to my ex, driving on the street in the town we both live in. It’s insane that she was ever granted any order to begin with. I don’t acknowledge her existence. My relationship is with him not her.

    Like

    Reply

  4. My wife of 32yrs kind of set me up. I went thru two lwr back surgeries which failed in 09. I resigned from my job making $70000 plus ayr. Had to sell my Harley my Yamaha 600 r. It ruined my life! I gave her half of the sales. Anyway she planned on leaving me I didn’t see it! No arguments or disagreements what so ever! She told me she was helping a pregnant friend setup p.an apartment I said no problem! Little did I know she was setting up her apartmenr! I didn’t know my mortgage was behind cause me ss paid it. Well she spent the money didn’t pay mortgage. Until bank of America notified me I was behind 3 months! Needless to say she left two weeks later! She said I was going to shoot her to the cops. They took all my firearms $70000 worth two samurai swords worth $10000. I was screwed. Sold all my firearms for 8000. I haven’t contacted her in 3 yrs I want my 2nd amendment rights back! NJ sucks they have a 99 yr order which is cruel.and unusal pusihment! I haven’t contacted her and don’t care what she does! I want my life of shooting back! I hope to have it overturned I will not touch or contact her I haven’t done that and never will! Lawyers say it’s $5000 to fight it. I’m trying on my ssd. I don’t want to sound like a loser! But in 42 yrs I never touched her! It’s the pervious unreported question that hurts us! It’s a self serving statement! I hope all tour prayers and support can help me beat this thanks for hearing my rant but there is a lot more than me that are getting burned in nj! I woul c never hit or touch her never have and never will! My 2nd amendments mean more to me!

    Like

    Reply

  5. Just so you know both her and I are remarried. We have an 11 year old son that I also haven’t seen in 6 years. She did a real good job playing damsel in distress and I got the screws. This injunction isn’t necessary and conditions have changed from when it was granted. I do know the judge denying without an evidentiary hearing was wrong. They told me to refile the motion and just ask for a hearing. Any advice would help. Can’t afford an attorney.

    Like

    Reply

  6. Can you please help me. 6 years go ex wife obtained a restraining order for one incident that was taken way out of context. I haven’t seen nor been anywhere near her since our divorce in 2010. I’m trying to vacate injunction and filed 2 motions but judge keeps denying it stating respondent does not state or allege any ” legal basis in the four corners of his motion.” I’m perplexed as to what that means. We are divorced and have no contact and the only incident was in 2008 when I caught her cheating and tried to grab her phone. I asked for a hearing to prove circumstances had changed but still it was denied.

    Like

    Reply

    1. What the judge is saying in his own obscure way (he’s not writing for you; he’s writing for an imaginary peer) is that there’s nothing on the page(s) you submitted—pages have four corners, get it?—that gives him a legal basis to grant your motion.

      People assume commonsense or obvious error or glaring fraud is a basis for correcting a bad ruling, but it isn’t necessarily.

      What state are you in, Jeff?

      Like

      Reply

  7. omg i found a sitee that addresses my nitemare life . for the past 2 years my wife has abused the exparte protection order her in southern missouri.she has at the advice of some really biased and vicious attorneys and courts advocates. file these petitions (4 total now ) strictly as a weapon to gain custody and advantage in a divorce. that my post pardum 46year old wife filed now for the second time in dec 2011. i at first did not fight the first 2 of these petitions knowingg that the insueing court battle would finish off my marriage for good i did not want that and after the first one we actually got back together but the hormonesw or whatyever it is took effect and she ran off to florida withour baby boy and by the ime we found her and she was back in court i had missed a year of my sons life. she was just about to get arrested when her lawyer told her she best come back and their plan worked flawlessly she came back disobeyed everysingle rule in the book regarding basically every part having to do with custody and the behavior of the parents and parties . she violated our agredd deal that kept her out of trouble ( what an idiot i was for lettin g her use my love for her to con me ) after being back one month or less and even though i had a court order form butler county allowing me daily contact with my son she refused and then filed another exparte petitionstating i would not leave her alone well my god is she that stupid l? of course i would not jsut leave she had our son and i had not seen him for going on 1 1/2 years over half his life . of course i would not leave her alone court ordered her to allow daily contact swhe vilolated it totally but even tho we had actually had no contact she still file a petition and then did not show for the hearing but insted of thowing it out the comissioner AIKIIN in green county missourijust let it ride for a month then she didnt show the second time let it ride again ( unbelievable)THEN THE THIRD TIME I CAMER WITH ALL MY HARD EVIDENCE TO PROVE THAT HER ALLEGATIONS WERE IN FACT FALSE AND THE ENTIRE PETITION DID NOT HAVE ONE TRUE STATEMENT OTHER THAN HER NAME it was a cabon copy of the first 2 from butler county and ever bit as false she mad e awful claims saying i was on drugs and had refused the test saying she had run to escape me and all kind s of circumstancial lies about what she was and had been doing all ment to sway the court in her favor as per her lawyer and those evil court advocates that sit outside the offices there in the court house itself putting words in to these womens mouths see my wife is from south america and english is her second language she had no knowledge of wht an exparte was but she leaqrned fast that she could say the magic words in the petition and rule over me by power of the police magic words ” drugs guns im affraid he attackes me )” now coming form someone who ontheir first attempt to file one of these petitions wrote that i had come in and told her she could not run the dishwasher several times a day and to quit that and save power . now of course that advocate that was sittin g there told her no way wiill that work even tho it was true and the worst thing my wife could truthfully say about me the advocate took the petition and flipped over and wrote the entire back of the paper with the most horrible alllegations of drugs and violence against me i was stunned . but my wife did not sign it the advocate did how is that ””””??????!!!!!!!~ i dont know this person my wife did not know her how is it that she could do something like that biottom line here is this got lots worse and now im on 50000 dollars bond charged with several felonies like stalking and assault and all stemming from this protecftion order m ylife is ruined i have virtually lost everything i owned i do still live on our estate but was forced to file chap-ter 13 the opposing lawyer has lived up to her rep and viciously destroyed forst my finances so i could not hire a comp lawyer and now push all these charges that i am totally innocent of i ahve not evenseen my wife for almost a year except in court i have not seen my little boy in 2 years now i ve got a gps thing on my ankle and the court and the greene count y missouri system last friday took every dime i had and i just barely ecaped being help without bail because of these protection orders no one will even look at the evidence i have that is absolute and totally indisputablely correct is court docs and state docs and other hard evidenc of her lies but the y do nothing to her and crucify me even tho i have not been near her i dont even know wher eshe is she has kiddnapped my son and left the apt where she was in may without p[ermission or notice of any kind she has done this withour any custody order in place at all thats kiddnapping but still they do nothing she claimed or her attorney claimed she was running from me ,even tho there has never a police call finding me or any evidence f me or a stuggle or disturbance of any kiind never ahs there been an injury or a doctor visit or a pic of a bruise of anything like that.thats because my wife an d i have never even had aq small shoving match let lone actual violence ,never! a few heated arguements in 14 years and oth times she left from me there had been not even a disagreement or problem that i was aware of at all . im sitting here being punished as if i had commited a capitol crime of some kind with a huge bond and gps monitoring even tho i have not seen my wife outside of court for two years was told to stay in my home 24/7 where is the crime that warrants this there has not been anyone hurt or propeerty damaged there has not been any sign of any of these things they say except for statements made by my wife and her attorney. so does anyone know an attorney that will stand up and get outside the status quo box and actually fight fo rme and all of us in this sit. the “this is what happens crap ” is just that crap i have talked with at least 25 attorneys that all have some lame reason they donet want to help someone thats being railroaded badly / most of them even state that clearly that im getting screwed
    but because of the notorious malicious and pain in the ass nature of the lawyer for my wife and the complex nature and the change of venue in my case no one will take it the ones that would have were telling me oh you cant do anything about that order and all this crap about thisw is how its done i get screwed a criminal record maybe even thrown in prison lose everything and end paying her or ordered to do so when she is the one that went nuts and left for no reason and has broken countless rules and laws and is still doing so this very minute. it is no wonder some men final snap and do something stupid and end dead or worse and yes there is worse. WHERE IS A LAWYER THAT WILL HELP ME CRUSH THIS FULL ORDER OF PROTECTION????? I FILED THE MOTION TO REHEAR THE CASE IN THE 15 DAY PERIODE AND THE MOTION STILL SITS THERE NEEDING NOTICED UP MY DIVORCE IS SCHEDULED TO TRIAL END OF THIS MONTH AUGUST THAT MUS TBE POSTPONED DUE TO THE FACT THAT THE DIVORCE COMISSIONER IS THE SAME PONE THAT ISSUED THAT INSANE ORDER JEFF MARQUART COMMISSIONER IN GREENE COUNTY MISSOURI the day i thought i would be cleared of the allegations in that petition the first thing marquart said was ‘”Im only going to allow things that have occured since the petition was filed” those exact words i know i was screwed right then and there. how can i defend against something like that there had been nopthing occur in the first place and for sure no tsince the petition was filed hell i was there to defend against things in the petition when he read the definition of harrassment he completely left out the key phrase” for/ wiith
    legitimate purpose”” since i had court order for daily contact i was not harrassment to call and expect to talk to my son. now she is also guilty of intentional parental kiddnapping and alienation for sure is harming my sons develpopement as she does nothing with him but sit inside all day long every day lookn at the floor caught up in her own horrible pile of lies and deception what do i do icannot just give up coz my son is at stake here an innocent child caught in this awful web of crap created by the abuse of exparte protection orders is just wrong bad wrong in every way

    help
    an innocent child and his father before its too late
    \

    Like

    Reply

    1. Your frustrations are ones I’ve heard and had over and over. Forty years ago everything you’ve described would probably have been reconciled with a divorce negotiation and a handshake. Difficult, hard on your son, but not ruinous.

      It’s hard to find representation when you’re contesting something like this, because these ex parte instruments fall into a kind of gray space.

      Are these guys in your area, Bryan: Henderson & Waterkotte, P.C.?

      You could also check with Attorney Gregory Hession. He’s only licensed to practice in Massachusetts (whence the name of his website, MassOutrage.com), but he specializes in restraining order defense and sometimes takes cases in other states.

      Otherwise see if there’s an attorney or firm that identifies itself as specializing in restraining order defense.

      Let me know if you learn anything positive.

      Like

      Reply

Leave a comment