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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 12118
Experience:  Licensed Texas General Practice Attorney
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if someone has filed a emergency restraining order on you and

Resolved Question:

if someone has filed a emergency restraining order on you and when you go to court it was proven they were less than truthful and a protective order was denied and the restraining order lifted in NC, does that show against your record.
Then they come back a 2nd time and try to get another restraining order, which was denied by the magistrate because it was obvious it was a lie, but you still have to go to a protection order hearing, can you request action be taken against the person at that hearing?
Submitted: 1 year ago.
Category: Family Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

A restraining order is public record, even if lifted, although you can request that the judge seal it.

ScottyMacEsq :

Also, it is not a criminal case unless it is violated, so if someone like an employer performs a criminal background check, a civil restraining order will not show up. You can go to the clerk's office to see if there is a copy available (public record).

ScottyMacEsq :

Another issue is that there are lots of these, so it's unlikely someone would just stumble across these unless they had access to the police database. Otherwise, it's not something that someone is going to find unless they know what they're looking for.

ScottyMacEsq :

As for what can be done... that's a bit more tricky. In general, someone has the Constitutional right to petition the government for redress of grievances. That is, you can't file a restraining order against this person seeking to stop the person from filing restraining orders. This person actually has a right to do so.

ScottyMacEsq :

But it can be actionable if this person is using it for an ulterior purpose (such as harassment) and there's a willful act. The elements essential to sustain a civil action for "abuse of process" (using the legal system for ulterior motives) are; 1) an illegal, improper or perverted use of legal process that is not authorized by the process, 2) an ulterior motive or purpose and 3) an injury resulted from irregularity.

ScottyMacEsq :

There's also the possibility of "malicious prosecution": In order to recover for malicious prosecution, the plaintiff must show that the defendant initiated the earlier proceeding, that she did so maliciously, and without probable cause, and that the earlier proceeding terminated in the plaintiff's favor. Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979). In civil actions, the plaintiff must show that there was some arrest of his person, seizure of his property, or some other special damage resulting from the action such as would not necessarily result in all similar cases. Id. at 202-03, 254 S.E.2d at 625.
The gist of such special damage is a substantial interference either with the plaintiff's person or his property such as causing execution to be issued against the plaintiff's person, causing an injunction to issue prohibiting plaintiff's use of his property in a certain way, causing a receiver to be appointed to take control of plaintiff's assets, causing plaintiff's property to beattached, or causing plaintiff to be wrongfully committed to a mental institution.

ScottyMacEsq :

That being said, you need to contact an attorney in your area that deals with malicious prosecution / abuse of process cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Thank you for your help.

ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 12118
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and 3 other Family Law Specialists are ready to help you

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ScottyMacEsq
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