Protective Orders

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Table of Contents

• Why Protective Order Hearings Create Unique Challenges
• Pros of Testifying at a Protective Order Hearing
• Cons of Testifying While Criminal Charges Are Pending
• Finding the Right Strategy When Both Cases Overlap
• Legal Support from The Law Offices of Daniel J. Miller

A protective order hearing and a criminal case may involve the same people, the same incident, and the same emotions. But legally, they operate on separate tracks. When someone faces criminal charges related to the conduct that prompted a request for a protective order, both cases can influence each other in powerful ways. One of the biggest strategic questions that arises is whether the accused should testify at the protective order hearing.

The decision matters. Protective order hearings move quickly, often requiring testimony and evidence long before a criminal case reaches trial. Speaking in one courtroom can echo into the other. Understanding the legal implications helps defendants make informed choices that protect their rights.

Why Protective Order Hearings Create Unique Challenges

Protective orders are civil proceedings. They use a lower standard of proof, move on tighter timelines, and sometimes allow evidence that a criminal court might limit or exclude. Judges may issue temporary restrictions that affect a person’s home life, parenting time, and access to shared property.

At the same time, criminal charges involve constitutional protections, higher standards of proof, and stricter evidentiary rules. Anything said under oath in the civil case can be used by prosecutors later. This is why testifying at a protective order hearing is not just a question of “telling your side.” It is a strategic legal decision that requires weighing immediate benefits against long-term risks.

Pros of Testifying at a Protective Order Hearing

1. Offering a direct explanation of events

Testimony gives the respondent the opportunity to tell their version of what happened. If the allegations are exaggerated or inaccurate, speaking clearly and calmly at the hearing may help the judge see gaps or inconsistencies in the petitioner’s story. In some cases, this can influence the outcome more strongly than documents alone.

2. Providing context that might otherwise be missing

Protective order hearings often involve emotional narratives. A judge may benefit from hearing the circumstances leading up to the incident, the dynamics between the parties, or other context that changes how the allegations are understood. When that context is compelling and truthful, testimony can correct assumptions.

3. Demonstrating credibility and cooperation

A respectful, consistent account may help establish credibility. Some judges look closely at how each party presents themselves when deciding whether a long-term protective order is justified.

4. Potentially avoiding the consequences of a long-term protective order

Long-term protective orders can affect employment, security clearances, firearm rights, and family relationships, and they can also create exposure to additional legal consequences if someone is accused of a violation of a protective order.

Cons of Testifying While Criminal Charges Are Pending

1. Statements become evidence in the criminal case

This is the most significant concern. Anything stated under oath can be used by prosecutors if the facts overlap with the criminal charges. Even small inconsistencies can be taken out of context or interpreted negatively in the criminal case.

2. Cross-examination may reveal information unintentionally

High-stakes cross-examination can lead to answers that sound different than intended. Nervousness, the stress of the situation, or confusion about a question may create statements that prosecutors later examine carefully.

3. Limited protection compared to criminal proceedings

In a criminal trial, defendants have clear constitutional protections. In a civil protective order hearing, those protections apply differently. The respondent cannot be compelled to testify, but once they choose to, they open themselves up to questioning that might not occur in the criminal courtroom.

4. Risk of misinterpretation

Civil judges sometimes interpret statements more broadly. A comment meant to explain circumstances may be interpreted as minimizing harm or accepting partial responsibility. This can strengthen the petitioner’s case and potentially influence decisions about long-term restrictions.

5. Impact on plea negotiations

Prosecutors review every available piece of evidence when negotiating. Testimony that appears inconsistent or defensive may weaken the defense’s position in future discussions.

Finding the Right Strategy When Both Cases Overlap

There is no universal answer on whether a defendant should testify. The strengths of the evidence, the nature of the allegations, the timeline of the criminal case, and the overall defense strategy all play a role. The most effective approach is one guided by legal counsel familiar with both civil protective orders and criminal defense.

Legal Support from The Law Offices of Daniel J. Miller

Legal strategy becomes critical when two cases intersect. Our team at The Law Offices of Daniel J. Miller understands how protective order hearings and criminal charges influence each other, and we approach each case with a clear, coordinated plan. We evaluate the potential risks of testifying, review the evidence in both matters, and guide our clients on the safest path forward.

We examine how statements might be interpreted in criminal proceedings, assess what the petitioner may present at the hearing, and determine whether remaining silent or presenting limited evidence may offer better protection. When testimony is appropriate, we help clients prepare to communicate effectively, avoid harmful phrasing, and maintain clarity under cross-examination.

Our goal is to protect our clients’ constitutional rights, strengthen the defense across both cases, and reduce the long-term impact that protective orders and criminal charges can create. With careful planning and informed legal guidance, our clients gain a clearer understanding of their options and feel supported through a challenging legal process.

If you are facing a protective order hearing while criminal charges are pending, our team at The Law Offices of Daniel J. Miller offers the legal insight and courtroom strategy needed to navigate both cases with confidence. Contact us at (757) 267-4949 to schedule a consultation.

Divorce can be an incredibly challenging period. Navigating the legal landscape and managing your emotions can be a lot to handle. During this time, it is important to address situations where one spouse feels threatened or unsafe, and a restraining order may become necessary. Additionally, there are cases where an individual may seek a restraining order prior to filing for divorce.

If you or someone you know is in an emergency situation, please reach out to the National Domestic Violence Hotline at 800-799-7233. You can also text START to 88788 for assistance. Your safety and well-being are of utmost importance.

What Is a Restraining Order?

A restraining order, also referred to as a protective order, is a legal order issued by a magistrate or judge with the intention of safeguarding the well-being and safety of an individual who has been subjected to abuse, as well as their family or household members.

Who Can Get a Protective Order?

You may seek a protective order if you meet any of the following criteria:

• You are an adult or minor victim of domestic violence, as legally defined. This violence may be committed by a family or household member, a relative of your spouse, someone with whom you live, or someone with whom you share a child.
• You are filing on behalf of your minor child or an adult family/household member who is physically or mentally incapacitated and unable to file on their own.
• You have reported or witnessed an act of domestic violence resulting in abuse, threats, harassment, or other forms of intimidation directed towards you.

Types of Protective Orders

There are several types of protective orders that vary in duration and scope. The person who files for a protective order is the "petitioner," and the individual against whom the protective order is filed is the "respondent."

Types of protective orders include:

• Emergency Protective Order (EPO): An EPO is a short-term order that is usually issued by the court immediately after an incident of abuse. It typically lasts for three days or until the next court date.
• Preliminary Protective Order (PPO): A PPO is a medium-term order that provides protection for a longer period of time, typically up to 15 days or until the final Protective Order hearing. It can be issued without the respondent being present in court.
• Permanent Protective Order (PO): A permanent protective order can last for up to two years. This type of protective order requires a court hearing where both parties can present their evidence.

How a Protective Order Can Affect Divorce

A restraining order can have a significant impact on the divorce process in multiple ways. However, it is crucial to remember that your safety should always be the top priority.

Ways a protective order can impact divorce proceedings:

• Negotiation Challenges: In divorce situations, spouses are encouraged to negotiate on matters such as child custody and spousal support. However, domestic violence cases may require alternative solutions.
• Restrained Interactions: When a domestic violence restraining order is in effect, the spouses may be prohibited from being near each other, complicating divorce settlement negotiations.

Although a protective order can present unique challenges in a divorce, it does not make divorce impossible. By seeking the guidance of a knowledgeable attorney well-versed in both protective orders and divorce proceedings, you can effectively navigate through this complex process.

Get in Touch with Our Team

If you or someone you know is going through a divorce and needs assistance with a protective order, get in touch with our team at The Law Offices of Daniel J. Miller. Our experienced attorneys can help you understand your rights and navigate the legal process with compassion.

Contact our firm today at (757) 267-4949 or send us a message online.

What does the prosecutor have to prove and what are the penalties?

TYPES OF PROTECTIVE ORDERS - There are three different varieties of protective orders.

Emergency protective orders – lasts approximately 72 hours and can be obtained from a Magistrate or Judge by the petitioner or a police officer without the presence of the respondent.

Preliminary protective orders – Generally last approximately two weeks and is issued by a Judge without the presence of the respondent.

Permanent protective orders. – Can be entered for up to two years and usually occurs after a full hearing on the merits of the case.

Although each is different in terms of duration and how a petitioner obtains one (see our video on protective orders by clicking here) they all carry the same consequence if you violate the terms.

NOTICE - When the Court issues a protective order and you are served with a copy you are presumed to be on notice of the order’s provisions. These provisions include but are not limited to no contact with a petitioner and their family members, sole and exclusive use of a residence, prohibiting further acts of violence, and in some instances prohibiting you for terminating utilities. Each violation of the Order’s terms constitutes a separate and distinct charge.

TYPICAL VIOLATION - The most common violation occurs when the respondent is required to have no contact with the petitioner and the respondent or third party at the respondent’s request reaches out to communicate because they need to obtain items from the home or because they are responding to a text/ call from the petitioner or they want to speak with their children. Although the plain meaning of “no contact” is not contained in the actual order no contact means no in-person contact, no phone calls, no text messages, no emails and no third party contact.

THE CONSEQUENCES – It is a class one misdemeanor if you violate the terms of a protective order. If found guilty the maximum punishment for this crime is 12- months of active incarceration, a part of which may not be suspended, a $2500 fine and the reinstatement of a new protective order for up to two years

There are many technical defenses that may be available to you that only an attorney well versed in evidentiary rules and procedures will be able to provide. If we can help you with this or any other legal matter please give us a call at (757) 267-4949">(757) 267-4949.