May 18, 2011

• Steven Topazio wrote this April 27, 2014 at 12:01 pm

The defendant, who had been married for only seven months, received notice of an Abuse Prevention Order filed against him by his wife, hired Attorney Topazio. Attorney Topazio obtained a copy of the supporting affidavit which supported the Temporary Restraining Order and learned that the complainant was placed in fear from several incidents of alleged physical abuse attributed to the defendant. The hearing to issue a restraining order is a civil proceeding that is conducted in an informal manner where the rules of evidence are not strictly enforced. The defendant is under no obligation to attend this hearing but if the plaintiff appears and he does not, the permanent order usually always issues. If the defendant attends the hearing however he is under no obligation to testify as anything that he might say could be used against him. Most restraining orders are supported by affidavits which allege physical harm which could result in criminal charges being filed against the defendant, as was the case here. If criminal charges have been filed or could be filed against the defendant, then it is advisable that the defendant invoke his 5th Amendment Right not to testify so as to avoid incriminating himself.
To avoid the possibility of criminal charges being issued against his client, Attorney Topazio contacted opposing counsel and negotiated a resolution of the conflict whereby he suggested that if both parties would enter into counseling in an attempt to repair their marriage, and that the no contact portion of the restraining order is dropped, his client would agree to the issuance of the restraining order but only for a period of time less than one year. Hearings for permanent restraining orders are generally for a year-long period. At the hearing, Attorney Topazio was effective in persuading the court to order a no abuse order only for a period of five (5) months, despite opposing counsel’s request that the no abuse order be issued for one (1) year.