Petitioner: The person who applied for the Temporary Order of Protection and would like to have the order continued for a year or even made permanent.
Respondent: The person against whom the petitioner filed the Temporary Order of Protection.
If the Petitioner is present but the Respondent is not present: The Judge will ask the Petitioner if s/he wants the Order continued and if s/he wants the conditions changed. If the Petitioner wants the Order extended, the Judge will usually extend the Order to make it enforceable for a year or even made permanent.
If the Respondent is present but the Petitioner is not present: The Judge will not continue the Temporary Order of Protection.
IT IS EXTREMELY IMPORTANT THAT THE PETITIONER BE PRESENT AT THE HEARING IF S/HE WANTS THE TOP TO BE CONTINUED.
If both the Petitioner and Respondent are present: the Judge will ask the Petitioner if s/he wants the Order continued with the same conditions, then will ask if the Respondent objects to the Order itself or if the Respondent simply objects to the conditions of the Order (for example, the Respondent may object to not being allowed telephone contact.) If the Petitioner and Respondent and the Judge can agree on continuing the Order, the Judge will continue the Order as agreed upon.
If the Petitioner and the Respondent cannot agree about the continuance of the Order or about the Order's conditions, a hearing will take place right at that time. Both parties will have the opportunity to testify, to question each other, to call witnesses and to question each other's witnesses.
WITNESSES: It is important that witnesses be at the hearing to testify in person: because in most cases, testimony in writing or in the form of letters to the Judge will not be allowed as evidence in the hearing. Your witnesses should be people who were present and actually saw or heard incidents that you plan to testify about, or actually saw injuries that you received.
EVIDENCE: You may also bring evidence to your hearing, such as copies of police reports, photographs of your injuries (be sure to document when and where they were taken and who the photographer was), letters written by the Petitioner or Respondent, divorce papers or other documents directly related to your case.
WHEN THE PROCEEDING BEGINS: The Judge may ask for the Petitioner's testimony first, or may ask first for the Respondent's or witness testimony. The Judge may ask questions of the Petitioner and Respondent, and may ask for other evidence and for other witnesses to testify.
TESTIFYING: The Petitioner will be "sworn in" (stand and raise your right hand and swear to tell the truth, etc. Your response is "I do.") The Petitioner will be asked to explain his/her relationship to the Respondent and to explain why s/he applied for the TOP. (If the Petitioner has a lawyer, the lawyer will ask the questions.)
CROSS-EXAMINATION: After the Petitioner testifies, the Respondent (or the Respondent's lawyer) will be given a chance to cross-examine the Petitioner. The cross-examination will consist of questions about the Petitioner's testimony at the hearing and about his/her personal statements in the TOP application, as well as any other questions relevant to the Temporary Order of Protection.
RE-DIRECT EXAMINATION: After cross-examination, the Petitioner or the Petitioner's lawyer will be given a chance to "redirect," that is, to ask more questions or give further testimony based on the cross-examination material. The Petitioner will then be able to call witnesses, and the questioning processes are the same for those witnesses.
TESTIFYING: The Respondent is then sworn in and given the chance to give testimony, after which the Petitioner can cross-examine the Respondent. After the Petitioner's cross-examination of the Respondent, the Petitioner has a chance to redirect. The Respondent then may call witnesses and the questioning process is the same for those witnesses.
Closing Statements: After both parties and witnesses testify, both parties may make a "closing statement." During that time, each side sums up the reasons the TOP should be continued or not. Then the Judge will make a decision to 1) continue the order; 2) not continue the order; or 3) review the evidence and testimony and make a decision at a later time, usually within 48 hours of the hearing.
Tell the TRUTH! It is a crime to lie on the witness stand. If you think a question asked may "hurt your case," you or your attorney may object to the question. If the Judge requires you to answer the question, you must tell the truth.
The hearing is a chance for both persons to testify and present evidence about why there should or should not be an Order of Protection. THE TOP HEARING IS NOT THE TIME TO SETTLE CHILD CUSTODY ISSUES OR DISPUTES ABOUT PROPERTY. When you are testifying, give a concise statement about why you believe an Order of Protection is necessary or not necessary. Explain the actions and events described in the affidavit (the part of the TOP where the Petitioner explained why s/he was applying for an order of protection) and any other incidents of violence or stalking that you want the court to consider.
After each side gives their testimony, the other side will have a chance to ask them questions.
THE PERSON ASKING THE QUESTIONS IS NOT ALLOWED TO MAKE ACCUSATIONS OR TO GIVE TESTIMONY - S/HE MUST STICK TO ASKING QUESTIONS. THE PERSON GIVING TESTIMONY MUST SIMPLY ANSWER THE QUESTIONS ASKED – THIS IS NOT THE WITNESS'S TIME TO ASK QUESTIONS OR TO ACCUSE OR ARGUE WITH THE OTHER SIDE.
When asking questions, you can talk directly to the Judge and not look at the other person if it makes you feel uncomfortable or scared. When it is your side's turn to testify or ask questions, try to stick to the events or actions described in the affidavit or in testimony from other witnesses. Ask questions about factual matters and try to make your questions as specific as possible. You may ask questions about dates and places where the incidents occurred, what happened during those incidents, who else was present and witnessed the incidents, and if medical treatment or counseling was sought. You can also ask if anyone (including yourself) called law enforcement or 911, or if any weapons were used or were threatened to be used.
THE JUDGE'S DECISION: When you are acting on your own behalf, that is, when you don't have a lawyer to ask the questions for you, it is up to you to make clear to the court why you think the Order of Protection is or is not necessary. You may want to make up a list of questions to ask the other party during the hearing. If you are the Petitioner, it may feel strange to you to ask the Respondent questions about abuse caused by him/her since both of you were present and know what happened. However, the Judge never witnessed the abuse and needs to use her/his own best judgment about whether or not the TOP should be continued. In order to make this decision; the Judge needs as many facts about your situation as possible. WHEN YOU ASK AND ANSWER QUESTIONS, REMEMBER YOU ARE PROVIDING THE JUDGE WITH FACTS THAT S/HE WILL USE TO MAKE A DECISION. The more clear and precise you are in your questions and answers, the easier it is for the Judge to understand the facts of the case and make a decision.
IF YOU HAVE ANY QUESTIONS, OR IF YOU WANT TO ASK FOR AN ADVOCATE TO ACCOMPANY YOU TO YOUR HEARING, CALL THE LINCOLN COUNTY CRISIS SOLUTIONS 293-3223 OR THE LINCOLN COUNTY VICTIM/WITNESS PROGRAM AT 293-7781 Ext. 276.