Roger : Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question. I'll be glad to help.
Roger : IF the protective order was cancelled or if it had expired, then any contact he made with her after that point should not be considered a contemptuous act or otherwise in violation of the court's order.
Roger : However, if the protective order had not been cancelled, and he violated the order, he'll likely be charged with contempt and face new charges for violating the order.
Roger : If she lied to him and said the order was cancelled, and he can PROVE that - - with an email, text, etc. (something in writing) - - then that could certainly help his defense to a contempt charge.
During the trial my son tried to tell the judge that the order was expired and it was kind of hard to understand what he said in return. Something like he had the power to reinstate it.
Roger : It may have been that the judge is the only one who has the power to cancel or reinstate an order.
Wouldn't he have to let someone know if he reinstated it?
Roger : Jail time is an extreme consequence to violating a restraining order/protective order, so that's in his favor - - especially if there was no aggressive or threatening contact.
Roger : If the order expired, and was reinstated, your son should have been given notice.
We read online that it's anywhere from a misdemeanor to a felony. The ofp was that the girlfriend was afraid - there was no physical abuse.
So if son wasn't given notice of reinstatement what would a person do about it?
Roger : If the protective order was in fact cancelled, and he wasn't noticed that it was reinstated, then that would be his defense to any charge for contempt.
Roger : If he wasn't noticed that the order was reinstated, then his due process rights were likely violated, which would be a good argument to claim that the arrest for violating the order is improper.
Got it - so he has to wait til he's officially charged. He wasn't actually charged yet - the bailiff approached him after the trial, asked for his phone number which he naively gave and said they would be getting in touch as this was against the ofp
Roger : Yes, he would have to be actually charged before raising this defense.
Roger : But, in the meantime, he could try to find out from the court clerk the dates of the OFP to get a timeline in place to support his claim.
Thank you very much for that info. Can't think of anything else to ask :-)
Roger : Sure. Glad to help. Please let me know if you need anything further.