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AlmostFreeLegal
AlmostFreeLegal, Lawyer
Category: Family Law
Satisfied Customers: 105
Experience:  Attorney with 20 years of experience and several legal publication credits.
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Is a restraining/protective order null and void if the plaintiff

Resolved Question:

Is a restraining/protective order null and void if the plaintiff allows the respondent inside the home and stay a few hours to visit their children, have dinner, etc? I showed an act of kindness towards my husband on his birthday and now he says he can go back to the court and tell them about this and they can cancel the order. True?
Submitted: 8 years ago.
Category: Family Law
Expert:  AlmostFreeLegal replied 8 years ago.
Not necessarily. How this plays out with the judge will depend on several issues.

First, did you invite him to come over, or did he show up and you allowed him to stay? How this violation of the court order started will make a difference to how a judge looks at it. If you instigated the contact, then a judge may decide that you were not honest about the need for a protection order and may then set it aside. If he instigated the contact and you allowed him to talk you into it, then a judge is more likely to view it just as him violating the protective order (though the judge will still take your allegations less seriously as a result).

While he may be able to use this as a way to attack the protective order, such a move could also backfire on him. By going to your house, he violated a protective order and therefore he can be held in contempt of court - meaning, a judge could put him in jail for violating the restraining order.

I would suggest that if you needed a protective order against your husband, you also need to stop talking to him. You do not have any reason to be having conversations with him or inviting him over for dinner if he is dangerous enough to merit a protective order. You need to talk to your lawyer about what happened, and plan the best way you can deal with it in court when it comes up.

Good luck to you. If this was helpful, please remember to click the Accept button.

AlmostFreeLegal and 6 other Family Law Specialists are ready to help you
Customer: replied 8 years ago.
Okay, so then can I cancel a restraining order? And how would I go about doing it? File paperwork? Is there a court hearing to go before the judge to explain why I'm cancelling?
Expert:  AlmostFreeLegal replied 8 years ago.
Yes, you can file a motion with the court requesting that the restraining order be set aside. Some judges will set it aside simply upon receipt of your written Motion to Dismiss or Motion to Vacate Restraining Order, but others may want you to come to court (a) to explain why you said you needed a restraining order and now you say you don't, and (b) to make sure you understand that if they set it aside, they probably won't give you another one if you come back later.

If you felt the need to get a restraining order, think very carefully before you set it aside. When you do this, you are discrediting yourself and you will make it less likely that a judge will take your claims seriously the next time you go to the court for protection. Also, you need to be careful that you do not get yourself into trouble. For example, if you tell the judge that the man really did not do the things you previously said he did, the judge could find you in contempt of court and put you in jail.

The best advice I can give you is to talk to a local family law attorney before you do anything. If you have an attorney involved in your case already, have a confidential discussion with him or her about what is going on and why you are thinking about dropping the restraining order. If, for example, you are in the middle of a custody fight, dropping the restraining order is going to work against you in the final hearing.

Good luck to you.
AlmostFreeLegal and 6 other Family Law Specialists are ready to help you