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Roger, Lawyer
Category: Criminal Law
Satisfied Customers: 31769
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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i need to know the best way to defend myself against an order

Resolved Question:

i need to know the best way to defend myself against an order of protection, even though i have a simple assault charge on my record against her.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Roger replied 5 years ago.

Hi - my name is XXXXX XXXXX I'm a Criminal Law litigation attorney practicing in Tennessee.


The worst thing about these types of orders is that the judge is going to err on the side of caution and grant the order of protection if there is any chance that the claimant/person requesting the protective order is in danger.


That said, the best defense to a restraining order is to prove to the judge that there is no danger to the person. This could be based on a reconciliation, or the fact that you've moved away, that the person is fabricating the allegations, that there is no history of violence, etc.


Even though you've had a previous issue, if there has been no problem since that point, the judge should not hold that against you - especially if this is from many years ago.

Customer: replied 5 years ago.
i was expecting a more depth answer, because i put down i need alot of information. I guess i should have put down more information about my situation. Can i explain my situation and get a more in depth answer?
Expert:  Roger replied 5 years ago.

Sure, you can add as much detail as you like.


The problem with trying to beat a restraining order - as I said earlier - is that the judge is going to err on the side of caution and will usually grant the restraining order with even the least bit of evidence.


Let me know what other relevant information you want to provide. Thanks.

Customer: replied 5 years ago.
the situation at hand is this. I am an active duty service member of the army stationed at fort polk, la. Recently on saturday 3 dec. 2011 me and my wife got into a verbal argument. she would not leave me alone after several attempts of me trying to get her to leave the room. I then got up and placed my hands on her shoulders and guided her out of the room. She called the military police (MP's) and claimed i assaulted her. They deemed it on the spot that it wasnt assault. I was asked to leave the residence for three days and have no contact with her to give things time to cool off. During the 72 hr period of no contact she later went to the MP station and filed an assault report. There was an investigation and i was found to be innocent. The same day she took our 15 month old daughter and our only vehicle (which is in my name) and fled to tennesee. While in tn. she filed an order of protection and dec. 15 i have to go to trial against this. Although I have had one incident where i was pretty much forced into pleading guilty to simple assault on her in tn it was over a yr ago. My sergeants told me i had to because I couldnt keep going back and forth to tn from La. I did it and now its going against me. there has been no more episodes or charges since then. I cant afford a lawyer and I dont know what she plans on doing. I guess I need to know my best options and all the outcomes. I want to be able to see my daughter when i go down to tn especially for christmas. I cant obtain a copy of the investigation report because it takes 20 days and i will be in court in less than a week. What can i do to see my daughter and defend myself against her allegations?
Expert:  Roger replied 5 years ago.

Based on this, I think your best option would be to file a motion to dismiss the protection order based on the fact that the court has no jurisdiction over the matter because neither of you are residents of Tennessee, because the incident/altercation didn't occur in Tennessee, and because this matter ha been resolved through the military procedure.


If the judge refuses to dismiss the matter, the only thing you can do is tell the judge your side of the story and allow the judge to rule on the restraining order.


Also, if you're not residents of Tennessee, the court would have jurisdiction over the child or in regard to child custody. However, unless you are divorcing, a court is not going to disturb your right to see your child, and you have the same right or an equal right to see your child just as much as your spouse.

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