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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26824
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Last Monday (9/26/2011) I successfully got a very restrictive

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Last Monday (9/26/2011) I successfully got a very restrictive 6 month restraining/exclusive order against my wife as we are separated and I moved out. Even after I moved out, she remained very abusive and I am sure that is why I got the order issued by the judge. She even said at one point (and I recorded it) that she would lie and tell the police I hit her if she needed to... but since getting the restraining order, her parents have contacted me several times, she has called my sister several times, and she called me 4 times yesterday. But I have also called her parents back a few times as I was trying to help them (they asked for helping getting her daughter a good lawyer). I have also reached out to the defendant a few times since the restraining order was issued about several items that came up this week. Over the week I would say I called 5 times and sent 5 text messages. One was about my car got towed and put in impound and since her name was on the registration, I needed her to get the car. I have full custody of the 8 month old baby and I cannot live without car. When I read the restraining order that was issued against her, I did not see anywhere that I could not contact her, nor did the judge specifically tell me I was not to contact her or her family. And she did not stop containing me or my family, I was just replying. But now I am very concerned and have stopped calling but think it's too late. Will she be able to get the restraining order modified and on what basis? And how do I prove she called me and my sister? Do I have to get her Cell phone records subpoenaed (I also need her text messages).
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.
Hello Jacustomer,

The whole point of a restraining order is so that there will be no contact between two parties when one party has been subjected to domestic abuse. The order is against your wife, not against you, so technically you may do as you please. But in actuality, all your ex has to do is alert her attorney that you are seeking out occasions to talk to her to raise a real issue of whether you really do need or want this order.

She cannot get this order modified without notice to you. She is the subject of the order. If you still need the order you would have the opportunity to oppose any opportunity she would have to modify this. But leave her and her family alone from here. If there are things you must deal with, have your lawyer contact her lawyer. If there are no lawyers involved here yet, go to the police and see if they will agree to reach out to her for you.

You're not going to be able to subpoena phone records unless/until there is an actual court proceeding you need them for and a judge would have to sign off on them. Just avoid her insofar as possible. If she contacts you, don't speak to her. If she harasses you, you have an order and can have her rearrested.

Customer: replied 5 years ago.
Now I am really concerned. I KNOW I should not have been in contact but since she was not being abusive when she contacted me or my sister I let it slide.. But how do I prove her and her parents have been contacting me all though the week? Just keep their number on my cell phone and do not erase the call log? I am sick over this and am afraid she is going to lie and say I have been abusing her in return. What does notice to me in order to have the order modified? How does that process go? I know when I contacted her on Wednesday she went to the police and said I was being abusive to her and i saw the copy of the police report. She lied and even said I threatened her but if the cell records can be pulled, I will be cleared as I did no such thing. The police report was never investigated and it seems pretty one-sided to allow someone to file these frivolous reports without proof. I am actually LESS concerned about the judge dropping the restraining order and more concerned about the custody aspect. Please help ,I am so worried, of course I will STOP all communications but what if it's too late!!?!?!
Expert:  Zoey_ JD replied 5 years ago.

You're missing the point. There is nothing for you to prove. There is no proceeding against you. Leave her alone and get on with your life. Leave her parents alone too. If she bothers you, call the police and tell them so. The police clearly don't believe her and they are looking to help you. She will be arrested and all of this will stop. That's why you went into court in the first place -- to be left in peace.

Again, she is the subject of this order. YOU and not she would have the better chance of effecting a modification, because it is against her. If this is a family court restraining order, if she were to file a motion with the court to try to modify the order, you would be served with a notice that you'd have to appear in court and there would be a hearing as to whether or not the order should be lifted.. If this is a criminal order of protection, there's a prosecutor who handled/is handling the case against her on your behalf. Talk to the prosecutor and let him/her know that she's causing you problems.

Finally, cell records only show that a call was made, when, and to what number. It would not give the content of any calls. You already have on your own machine at home, evidence that she and her family have called you and when.

You already know it's not too late, because the police shut her down cold. Either you want the order -- in which case don't take or return her calls and don't send her messages through her family -- or you don't want the order . Make up your mind and behave accordingly.
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