It is not uncommon that a spouse immediately regrets the filing of a Petition for Order of Protection from Domestic Abuse. For those not familiar with the term, it is basically a Temporary Restraining Order filed in a domestic relations setting.
These are often filed for very good reasons and are needed to protect one the spouses from abuse at the hands of the other spouse. On many occasions, however, they are filed for illegitimate or otherwise misguided reasons.
For instance, they may be filed in the heat of the moment. They may be filed upon the errant advice of others, some well-meaning, some not as much. They are often filed with the misguided goal of obtaining the upper hand in a divorce or child custody setting.
It is beyond dispute that these Petitions for Order of Protection are filed without good cause on a regular basis. Frequently, the party that filed will later regret having filed it and want to know how to drop the petition. The answer in domestic relations court is much different than in the criminal courts.
Let‘s start with the criminal courts first. Once a criminal charge for domestic violence is filed, it is exceedingly difficult to get the charges dropped. This is the case even if the party who called the police or filed the report does not want to pursue charges and is even willing to put it writing. Once in the criminal courts, it is strictly up to the District Attorney whether the charges will be dropped or not.
In domestic relations court, it is far simpler to drop the petition. If the parties agree and an order of dismissal is filed, the petition will be dismissed. In the alternative, if the parties do not show up for the hearing, the petition is dismissed. There is no prosecutor to pursue the case. The case is filed by one of the spouses and it is up to that spouse either or their own or through an attorney to pursue it.
So if you filed the petition and want it dropped, how do you go about doing this? The answer is easy. The first option is to file a dismissal. The second option is to just not show up for the hearing. If the petitioner does not show up for the hearing, the petition is dismissed. There are a few caveats here.
First, the Respondent (the one accused of domestic abuse) would do well to show up no matter what the petitioner says regarding his or her appearance. It is not just cynicism that suggests this. It is not unheard of for the petitioner to say that he or she will not be there when in fact they do show up. If this is the case, the respondent will be found guilty by default.
Likewise, the petitioner should be careful as well. Respondents often file counter-petition for orders of protection from domestic violence. If you filed, then you would certainly not want to drop your petition if your spouse has already filed a counter-petition.
As in all legal matters, it is important to fully understand both your rights and the process. Due to the many serious consequences of domestic abuse, it is important to seek the counsel of an experienced attorney. If you cannot afford one, there are a number very good resources for parties to domestic abuse.
Collins & Collins, P.C. handles these cases in Albuquerque and Rio Rancho. We can be reached at (505) 242-5958