Attorneys Justin Shepherd and Mark Osborne represent both plaintiffs and defendants in Domestic Violence Restraining Order cases. A restraining order cases in NH, also known as a Domestic Violence Final Hearing, is a civil matter whereby one party, the plaintiff, is seeking an order of protection against a defendant. These cases are hearing in front of a judge. A violation of the Domestic Violence restraining order is a separate criminal matter. Domestic Violence Restraining Order cases originate when one party, the plaintiff, files a petition in court seeking an order of protection against a family member or intimate partner. Following the petition, the court may grant a temporary petition, with or without the defendant’s appearance, and will quickly schedule the matter for a final hearing on the merits of the petition.
The Burden of Proof:
The burden is on the plaintiff, the person asking for the restraining order, to make a showing of “abuse” by a preponderance of the evidence. A preponderance of the evidence simply means that it is more likely than not that the defendant abused the plaintiff.
What the plaintiff needs to show:
For starters, the plaintiff must show that the defendant is a family or household member or a current or former sexual or intimate partner. (If these are inapplicable to your case, you may proceed under the stalking statute.) Next the plaintiff needs to establish that he or she has been “abused.”
Abuse is defined by statute as the commission or attempted commission of one or more of the following acts: Assault, Reckless Conduct, Criminal Threatening, Sexual Assault, Interference with Freedom, Destruction of Property, Unauthorized Entry or Harassment. Some behaviors, while distasteful and repugnant may not constitute “abuse” as the term is defined.
In addition to proving abuse, the plaintiff needs to demonstrate that the defendant’s conduct presents a credible threat to the plaintiff’s safety. Context is of the utmost importance. While reading the morning paper you accidentally you spill coffee all over your new couch. Your significant other gives you a murderous look and mutters, “I am going to kill you.” While the statement was certainly hostile and may constitute abuse, namely criminal threatening, the question of whether the comment “I am going to kill you” constitutes a credible threat to the plaintiff’s safety remains. For instance, was this comment made during a moment of transitory anger with the defendant having no intention of carrying forward the murderous threat or was this a true bona fide threat to commit murder? Importantly, the defendant’s past conduct may be relevant in assessing whether the defendant poses a credible, present threat to the plaintiff’s safety.
What happens if a Restraining Order Issues?
Obviously the court will order that the abuse be halted. The court will accomplish this result by:
- Ordering that the police take your guns and ammunition;
- Restraining you from purchasing, receiving or possessing deadly weapons/guns;
- Restraining you from contacting the plaintiff;
- Restraining you from entering the plaintiff’s home;
- Prohibiting you from entering the plaintiff’s job, school or any place they regularly visit.
In addition to the obvious no contact provisions the court can order:
- That you make mortgage payments, car payments, health care payments utility payments;
- That you pay financial support to the plaintiff or children;
- That visitation with your children be supervised or that no visitation be permitted;
- That you engage in a Batterer’s Intervention Program or personnel counseling;
- That you pay the plaintiff money for compensation for losses suffered to include medical bills, damage to property, moving expenses and attorney’s fees.
Don’t hesitate to call and speak with us if you are seeking or confronted with a domestic violence petition. Our consultations are always free.
Our telephone number is: 603-595-5525