Last Updated on May 11, 2022 by Fair Punishment Team
Wanting an Order of Protection to be dismissed can be for several reasons. One could be that the order itself was issued for the wrong reasons. It could be that once the order was issued, after a week or so it was regretted by both parties or simply just the petitioner. Then the panic sets in to find out how to dismiss it.
There is a legal process to follow and a judge would need to evaluate the current situation. It may even be the same judge that issued the order. They will be aware of the case and need to be convinced why it now should be dismissed. However, having the order issued in the first place means that there was enough reasonable evidence that this was a necessary action. Proving that the situation has changed can prove difficult.
Though there may be specific reasons for having the order dismissed, it requires filing and a hearing. The judge needs to look at the current circumstances and conclude how they differ from when the protection order was issued.
What is An Order of Protection?
There are two types of personal protection orders, each is an Order of Protection though the safeguards do differ. Both are signed by a judge after a petition has been filed. They are intended to protect the petitioner from stalking, domestic abuse or sexual assault. The orders tend to involve accusations of domestic abuse and have extremely serious legal ramifications.
The first is where a partner believes they need a guarantee of safety by law against their spouse or partner. The order will contain requirements that there be no contact or communication between both parties. This includes telephoning the petitioner directly or indirectly. Importantly, there is a protected distance of meters that this person has to obey as a protection against stalking.
The target of the order can also be evicted from a shared property and directed to seek alternative housing. Temporary custody or visitation rights are awarded to the petitioner of the pair’s children. There can also be an award of financial support to the petitioner and a duty to support put on the target of the order. The target may also be ordered to pay court fees and attend counseling programs.
The second type of this order allows some form of contact but little communication between both parties. In both types, this is an order imposed by a court and only the court can dismiss it. There is not a scenario where one party believes the order is dismissed so stop following the specific rules that the order has imposed. The order is in place until the court has dismissed it.
The reasons why an Order of Protection may be dismissed center around the target of the order. Specifically that they no longer pose a threat to the petitioner. Once that threat and danger have been removed, dismissing the Order of Protection becomes somewhat easier.
Let’s look at specific scenarios that could result in an Order of Protection being dismissed.
There is the chance that the situation between both parties has changed. While the Order of Protection may have been reasonable at the time, the behavior of the target may have changed and softened. The order could well be to separate both parties from a difficult spell so that they can work through their differences then get back together.
Should the judge believe that the reasons for dismissing the Order of Protection are valid then the order can be dismissed. If so, all the safeguards are removed. The judge may also not fully dismiss the order and can change it. If the order stipulated no contact then this can be removed to allow for children to be visited again by the target. A safeguard can then remain to stipulate no abusive behavior.
Another scenario where the onus is on the target of the Order of Protection is where their behavior has markedly improved. Attending counseling is one such way to prove that they no longer pose a threat. This could be domestic violence counseling and even therapy.
Their attendance should be properly documented as proof that they have followed a recognized program. The target has to be specific in their argument and provide evidence that their behavior has changed. Attending counseling is a very good example that can be provided to the court.
Substance abuse or alcohol addiction could be a reason why the Order of Protection was initially issued. Attending drug or alcohol rehabilitation then achieving sobriety can be used as evidence to have the order dismissed. Just as with counseling, attendance on a specific program can be used as evidence (see also our article on class evidence) (see also our article on class evidence) .
Testimony or a letter from the therapists/counselors involved can corroborate this improved behavior. Furthermore, the petitioner showing up and attending the hearing can count as evidence should they testify why the order is no longer necessary. This applies to each of the four scenarios detailed here.
Even after the filing and the hearings. Even after all the evidence, testimony, and supporting letters have been presented, it is still down to the judge. The judge could dismiss the Order of Protection, they could also change it, keep it in place, or even extend it.
How would an Order of Protection be dismissed?
Either party can apply that the Order of Protection is dismissed. How that happens depends on whether the target or the petitioner of the order has applied. For the order to be dismissed would require reasons and arguments to be made before the court.
Without criminal charges being involved, the Order of Protection is somewhat less complicated. That does not necessarily mean the order can be easily dismissed. Though domestic violence or abuse may still be involved, the case can be kept private. This could mean it remains a civil matter and only involves the domestic relations courts.
If the situation between both parties remains a civil matter then they could agree to file a dismissal of the order. That would require hiring a lawyer who would also explain how the proceedings would follow. After the dismissal has been filed, the petition for the order may be dropped.
Neither Party Shows Up To The Hearing
An even more straightforward means of dismissing the order would be not to show up to a hearing. If there is a hearing about a dismissal both parties can reconcile beforehand. Should they decide there is no need for the Order of Protection to remain then they simply do not show up. In this scenario, the order is no longer valid according to the court.
Co-operation between both parties tends to make it easier for an Order of Protection to be dismissed. Should there be no prosecuting lawyer then there is no need for an Order of Protection. A plaintiff is required to prove the case that the safeguards in the order are warranted. Without that plaintiff, the safeguards would not be pursued thus the order becomes unnecessary if neither party has an interest in keeping it.
What are the options for the petitioner of the Order of Protection to get the order dismissed?
It should be noted that the petitioner has to prove that they were not manipulated, coerced, or threatened by the target of the order. Once that has been proven then the proper paperwork can be filed with the court. That is the start of the process, both parties are then made aware of the request that the order be dismissed. Eventually, a hearing is scheduled to dismiss the order.
The onus will be on the petitioner to show that the protections stipulated in the order are no longer required. This is done in the hearing and it does not need to be specific though it should be argued. The judge could note a history of coercive behavior and abuse then reconciliation. If the judge believes that this is just another repeat of that established pattern then the order will likely remain.
You may have noticed that the target of the order does not need to be present at the hearing. However, they do need to be notified of the request. Their presence could work against them if the judge believes it is intimating. In this scenario, most of the effort has to be made by the petitioner, the target of the order does not even have to attend the hearing.
What Are the Options for the Target of the Order of Protection to Get the Order Dismissed?
A scenario can also play out for the target of the order. This can count either if the order has been obtained or has been requested though is yet to be granted by the court. The target can file an opposition which the court then reviews and considers. If a hearing has been scheduled then the target has the opportunity to appear and argue their opposition argument themselves.
Motion to Dissolve
There is also a ‘motion to dissolve’ to consider. This is where the target believes that the Order of Protection was granted improperly or is no longer required. The motion effectively requests that the court terminate or cancel the order.
Once the motion is filed the process is largely down to the court’s discretion. Again, the court could schedule a hearing and grant the motion. In this case, the Order of Protection would be dissolved and immediately void. It is worth noting that an Order of Protection can only be dissolved and made unenforceable by the court.
Motion to Modify
A ‘motion to modify’ is slightly different. The target may believe that the Order of Protection presents an excessive burden or is simply too broad to enforce. This could apply to the no contact rule or where a distance is protected between both parties. As with the motion to dissolve, the court would decide if a hearing would be scheduled.
There may be a scenario where the court decides to issue an extended Order of Protection. If so, the target of the order can appeal and this will be filed with the court. It is worth considering that no appeal can be allowed should the court deny the application for an extended Order of Protection. An appeal can only be filed should the court grant the extension in the first place.
Unlike the previous two motions, a hearing would not be scheduled and no new evidence would be heard. Instead, the court reviews documentation in the appeal and any other information that has been presented. This is primarily for the justice court to ascertain whether the justice of the peace incorrectly applied the law when the extended Order of Protection was granted.
Then three possible decisions can be made by the district court.
- The order is kept in place and the appeal is not granted
- The order is changed and part of the appeal is granted
- The order is thrown out
What If the Order of Protection Has Been Dismissed and Needs to Be Reapplied?
If the Order of Protection has been dismissed or expired but the abuse has restarted then a new order can be requested. This would require the original petitioner for the order to return to court and apply again should they meet the requirements.
An Order of Protection provides safeguards to ensure that the petitioner is protected from the target of the order. This can include stalking, sexual assault, or domestic abuse. The order itself can provide a guarantee of safety by law against their spouse or partner.
Whether that be contact and communication or a protected distance in meters that the target must obey. Once the order is granted, the target can be evicted and ordered to pay financial support and attend counseling programs.
With such detailed and serious legal ramifications, it is perhaps no surprise that the order can be difficult to dismiss. But it can be achieved, largely by proving that the threat posed by the target no longer exists. Any differences could have been settled. If the target was required to attend counseling sessions or a drug and alcohol rehabilitation program then completion can be evidenced.
People can change yet a judge needs to be convinced of that sufficiently. It may also be the same judge that imposed the Order of Protection in the first place. In which case they will need to be convinced that the behavior of the target has markedly improved. As this is a legal process, the right filing has to be completed and hearings are held in court.
Either the petitioner or the target of the order can request that it be dismissed. For the petitioner, it is considered an easier process. They do not need to be specific in their reasons yet there is still the question of the judge looking over the case. If there is a pattern of abuse including coercive behavior then reconciliation then the judge can simply decide this is another example.
The onus is on the petitioner to prove they have not been manipulated, threatened, or coerced into acting to dismiss the order. The target of the order is actually better off not attending the hearing should their presence be deemed intimidating.
For the target to have the order dismissed can include one of three options. The most conclusive is a motion to dissolve though it is difficult to prove. Essentially, this is where the target believes that the order is no longer required or was granted improperly.
The second option is called a motion to modify where the target argues that the order is too broad to enforce or presents an excessive burden. If granted, the safeguards in the order would be changed. The target can also appeal an extended order of protection but not the order itself.
An Order of Protection has serious implications. There are several scenarios as to how the order can subsequently be dismissed. As a legal process, the order is enforced by the court and only the court can change or dismiss it.