Introduction
Connecticut Law provides that an individual (“the Applicant”) can seek relief from various types of physical and mental abuse by applying for two types of Temporary Restraining Orders (“TROs”): (1) a Civil Protection Order or (2) a Relief from Abuse Order.
These court orders forbid a person (“the Respondent”) from engaging in types of conduct and/or residing in or visiting certain locations, including their own home. These orders may be imposed for up to a one-year period. At the end of that time frame, the Applicant may move the Court to extend the order for another year.
Unfortunately, TROs can be utilized to improperly gain advantage in a legal proceeding, usually a divorce, or to impose constraints on a person when, for example, the police have determined not to arrest them.
The imposition of a TRO can have a significant adverse impact on the freedom of the Respondent. Therefore, if you are faced with this type of proceeding as a Respondent, it is wise to consider retaining counsel to assist in your defense.
Types of TROs and Hearings on TROs
There are two types of TROs: (1) a Civil Protection Order or (2) a Relief from Abuse Order. For additional information on the types of TROs, see the “Civil Restraining Orders” section of our website.
1. Civil Protection Order
A Civil Protection Order (“CPO”) may be sought by an Applicant who, pursuant to Conn. Gen. Stat. § 46b-16a(a), is a victim of sexual abuse, sexual assault, or stalking.
The Applicant must set forth the specific acts of sexual abuse, sexual assault, or stalking by the Respondent against the Applicant. The Court must schedule an evidentiary hearing on the application within fourteen days of filing.
Prior to the hearing, if the Court finds that, based on the application alone, there are reasonable grounds to believe that the Applicant is in imminent danger of the Respondent, the Court may impose an Ex Parte Order. This means that an Order is entered without the Respondent having an opportunity to submit a defense to the application. This Order remains in effect until the CPO evidentiary hearing. The Ex Parte Order directs the Respondent not to engage in a number of behaviors, including but not limited to, prohibiting the Respondent from threatening, harassing, assaulting, the Applicant, having any contact whatsoever with the Applicant, and/or staying away from the Applicant’s residence.
If the Respondent owns firearms, he/she will be ordered to surrender them to the local police department. Failure to timely surrender any firearms within the Respondent’s possession is a criminal offense.
At the CPO hearing, if the Court finds that it is more likely than not that the Respondent committed the acts of sexual abuse, sexual assault, or stalking alleged by the Applicant, then it will grant the CPO application and will impose orders against the Respondent as described above.
Prior to this hearing, an Applicant is required by statute to notify the Respondent of the CPO hearing and of any Ex Parte orders issued pursuant to their application. This notice is accomplished by serving the Respondent with the application documents submitted to the Court by a State Marshal.
2. Relief from Abuse Order
An individual who has been a victim of “domestic violence” by a “family or household member” may seek a Relief from Abuse Order against that family or household member (“the Respondent”).
As part of their application for a Relief from Abuse Order, the Applicant must submit an affidavit which outlines the Respondent’s alleged conduct from which they are seeking relief. Upon receipt of this application and affidavit, the Court shall schedule an evidentiary hearing.
Similar to the CPO application, if a Relief from Abuse Applicant alleges that they are in imminent physical danger in their application, the Court may impose an Ex Parte Order as it deems appropriate to protect them, as discussed above. These orders remain in effect until the evidentiary hearing on the Relief for Abuse application.
At the hearing on the Relief from Abuse application, the Court may grant the application and impose orders preventing the Respondent from engaging in certain actions, including barring the Respondent from entering the family dwelling.
Similar to the CPO, prior to the date of the Relief from Abuse hearing, the Applicant is required by statute to notify the Respondent of the hearing and of any Ex Parte Orders issued pursuant to the application by service of process by a State Marshal on the Respondent.
The Procedure for Defending Against a TRO
There are many ways that a lawyer can assist you in the defense against a TRO as a Respondent. As a Respondent, it is critical to contest the accusations in the application by: (1) cross-examining the Applicant on the contents of his/her supporting Affidavit; (2) obtaining and utilizing any documents or materials such as emails, text messages, videos, and social media platforms to use in the cross-examination of the Applicant or any other witness; (3) preparing the Respondent to testify at the hearing to refute the allegations; (4) preparing the Respondent to undergo cross-examination; (5) organizing a legal challenge to the application on the grounds that the allegations are legally insufficient as a matter of law.
1. Cross Examination of the Applicant Regarding the Contents of their Testimony and Sworn Affidavit
The first line of defense in the hearing is challenging the contents of the Applicant’s Affidavit and his/her testimony in court. This is accomplished by conducting a cross examination of the Applicant. The Applicant is firmly committed to the contents of their affidavit, as it is a sworn statement. Frequently, particularly those prepared without a lawyer’s assistance, the Affidavit will either contain inaccurate factual statements or will fail to state allegations that the Applicant will later testify to in court. Challenging and drawing attention to these errors are extremely effective ways of damaging the Applicant’s credibility. Undermining the validity of the Affidavit is an important aspect of defeating the application for a TRO.
In addition, there can be other avenues utilized to cross-examine the Applicant. Often, Applicants will only inform the Court of a portion of the actual events in either their testimony and/or in their Affidavit. Applicants frequently represent facts to the Court that are favorable to them and exclude those which are not supportive. Further, the actual context of the events are often missing from the Affidavit and/or testimony because they reflect adversely on the Applicant’s claims. The defense of the TRO cannot be limited to merely those facts that the Applicant desires to present to the Court. Thus, counsel must use cross-examination to bring proper context to the allegations and provide critical, additional information regarding the events in question.
2. Cross-Examination of the Applicant and Witnesses Utilizing Supplemental Documentation
In addition to these areas of challenge, it can be most useful to gather available documents that are inconsistent with the Applicant’s claims. In an era of many forms of electronic communication, including emails, text messages, videos, and social media platforms, these materials can provide valuable fodder for the cross-examination of the Applicant and any witness in the hearing. Any communication of any type between the parties or third parties should be preserved for review by counsel to determine whether they contain useful defense information.
3. Preparing the Respondent for Testimony on Direct Examination
In addition to the above defensive strategies, the Respondent must be prepared to testify before the Court. Testifying in Court can be a stressful event. To increase the chances of offering productive testimony, a client should be fully and carefully prepared to testify. That includes a complete explanation by counsel of the courtroom procedure, the proper demeanor in court, general rules relating to testifying including direct examination, a complete review of the client’s testimony, and finally the necessity of providing truthful and accurate testimony at all times.
4. Preparing the Respondent for Testimony on Cross-Examination
After direct testimony, the Applicant by his/her attorney or by himself/herself if unrepresented will have an opportunity to cross-examine the Respondent.
The ability to not only withstand cross-examination but attempt to turn it to your advantage is important to a successful outcome of the hearing. Respondents need to be instructed on how to properly respond to attempts by an adversarial attorney to undermine their credibility.
This preparation includes general instructions regarding cross-examinations, and extensive discussion regarding potential areas of cross-examination. Counsel will provide the Respondent with a number of general concepts to keep in mind during cross-examination to effectively blunt any attack on their testimony. Counsel will also discuss potential, favorable, and accurate responses to anticipated areas of inquiry by the opposing counsel.
5. Legal Challenges to TROs
The final role of defense counsel is to fashion any legal challenges that could exist to the entry of the TRO. Knowledge of the law in this area is important. Connecticut laws specifically define under what circumstances the Court may enter these TROs and against whom. It is counsel’s role to determine whether this application meets the relevant legal criteria for a TRO.
For example, state law requires that the parties have a certain relationship, that the alleged wrongdoing be of a certain type, and that notice be served on the Respondent within a certain time period prior to the TRO hearing date. If any of these requirements are not met, then the application can be challenged on the basis that on its face, it does not meet the legal criteria, even if true, for the entry of a TRO. A challenge on this basis requires counsel to be familiar with the applicable statutes and judicial decisions interpreting them.
Conclusion
The defense against a Temporary Restraining Order application must include an effective challenge to the allegations, the ability to counter them with testimony and exhibits, and the knowledge to mount any applicable legal challenge.
Given the significance of this proceeding and that it can be misused to gain leverage in other legal matters, the assistance of counsel is critical in protecting a Respondent’s interests.