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Respondent served restraining order-Petitioner allows respondent to stay in home-what becomes of restraining order?
Anonymous4 views2 answers
Respondent, living at same home as Petitioner, first notified of restraining order while moving out the night before court date. Respondent was served w/a Ex Parte Restraining Order/Order to Show Cause by Petitioner in court. Respondent was restrained and enjoined from going onto the grounds of or entering the home, work place or school of the other party, named child. Petitioner allowed respondent to move back into home the same day the order was approved in court. Does this action null and void the Order? Can the Petitioner be held in contempt of his own order? Should police be notified Petitioner allowed Respondent to remain in home after served w/court order?
I disagree with the prior answer. This is a really common situation in family law. The parties' actions don't cancel out the court order. But the Respondent is NOT going to get criminal sanctions or be held in contempt. I have represented plenty of people in the Respondent's same situation.
When the Petitioner invites a violation, they lose a lot of credibility as a "victim." Respondent, however, isn't too bright to stay with Petitioner as Petitioner can easily call the police claiming Respondent is being abusive (just because the police likely won't do anything or the court won't react doesn't mean it's any less a pain in the neck for Petitioner to do this).
Petitioner really can't do anything about the restraining order unless both parties create an agreed order vacating the restraints, but leaving the upcoming court date set. Are the parties separating? Were there other issues to be addressed at the hearing? If not, then the petitioner can strike the whole hearing and the order will expire on the hearing date.
The order of the court is not subject to the discretion of either the petitioner or the respondent. Neither the petitioner nor the respondent may modify or revoke the order of the court.
Only the court may modify or revoke the order of the court.
If the police finds the respondent (the person restrained from contacting the other person) living with the petitioner, most police departments would arrest the respondent. Many courts would send the respondent to jail.
If the petitioner or the respondent wants the court order to be revoked or modified, either of them can petition the court to do so. Whether the court would do so depends on the specific facts.
The respondent should review the facts with attorneys.
