A Santa Fe man came to our legal team with a problem. His ex-girlfriend, the biological mother of his two year old daughter, filed a restraining order against him (called a Domestic Violence Order of Protection in New Mexico). He had just been served with papers from the court ordering him to respond and appear at a hearing. Additionally, his “ex” had cut off any visitation between him and his daughter. They had never been married but after their breakup, they had agreed to a schedule where he would pick her up every Sunday morning to spend the entire day with his family (her grandparents).
The first question our team had for this young man was whether he and his “ex” were already in a custody battle. And his answer was “yes”. Having represented many other clients needing defense against an order of protection – we knew that this was a possible case of falsely filing a claim with the court. We assured him that this was only a first filing and we would defend him on the scheduled court date, which was in ten days.
He showed us a copy of her Petition for Temporary Order of Protection and we reviewed the charges together. She was claiming that on a certain Saturday afternoon, he threatened her with physical violence and she feared for her safety and that of her two year old. He was naturally very upset and denied that he ever threatened her let alone his daughter. He let us know that they constantly fought and texted each other frequently using awful language. He acknowledged that he had been at her house on that date, returning the car seat he had borrowed.
We discussed more of the facts about that afternoon and listened to him carefully. Were there any witnesses? Because neutral third parties can be important. Yes, there was one person, a neighbor, who was in her front yard when the incident took place. He showed us his phone and we examined the contents of the text messages. They was a lot of cursing and nasty things said back and forth – but no evidence of a threat. This was key evidence which is admissible in court. We asked him for copies of those messages and any emails or voicemails that he had to support his position. We pledged to interview his witness and prepare for his defense at the hearing. But our client missed his daughter and felt that she should not be used as a pawn between the parents. He wanted to see his daughter while the case was pending. Our first tactic was to try and negotiate with his daughter’s mother for him to see his daughter while the case was pending. As usually happens, the “ex” would not agree feeling she was justified in keeping them apart.
We then immediately filed with the Court and were able to postpone his hearing and ask the Hearing Officer to order that he be allowed to see his daughter while the case was pending. The Hearing Officer agreed and our client was temporarily reunited with his daughter. His next hearing was not an easy one and our client felt embarrassed by all of those texts and emails that were made public in the courtroom. The language on his texts and emails with his “ex” were full of expletives – but again, no threats. His witness was crucial in telling the Hearing Officer that he kept walking away from his “ex” while she pounded on his back. And that he had gotten in his truck and drove away. We won the issue for him – this time. Given the hostility of these two adults (parents) – and the pending custody battle, the conflict remains, with a little girl stuck in the middle.
Our client’s experience is an ideal example of why having an attorney represent you in the initial hearing on a Temporary Domestic Violence Order of Protection is so vital. An attorney knows the rules of the court and how to approach the Judge or Hearing Officer with important information in order to make to make a ruling. In this case, it was to restore visits between a father and daughter and ultimately find that there was no cause for a permanent restraining order. Orders of protection (restraining orders) are sometimes used to try and gain an advantage in a custody case. With proper legal representation you can be defended against a false claim.