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Drafting Your Motion
Contact the court clerk. Before you start drafting a motion to modify your no-contact order, call or visit the clerk's office in the court that issued the order. The clerk can give you more information about the procedure, and may have forms you can use for your motion. The clerk will give you information about how to modify or terminate a no-contact order regardless of whether you are the defendant in the criminal case or the victim. A clerk can answer questions regarding court procedures, the forms required, or the filing fees involved, but they can't answer questions about your particular case or give you legal advice. You also may be able to find information by going to the court's website. Many courts also have self-help websites that include forms and instructions, as well as step-by-step guides to the court procedures in that particular court.
Consult an attorney. Asking the court to change or terminate an order it has issued to protect a victim of domestic violence isn't a simple or easy thing. Because judges often are predisposed against dropping a no-contact order, having an attorney on your side can ensure the best arguments are made. If you're the criminal defendant, the attorney who represented you in the criminal case may be able to help you with your motion to terminate or modify the no-contact order. However, keep in mind that if you had a public defender, they may not be able to help you on this motion. Since it's not a criminal matter, you don't have a constitutional right to an attorney. Private criminal defense attorneys typically handle modification or termination of no-contact orders. This is true even if you're the victim in the case. Try searching for your state or local bar association on the internet. You typically can use the attorney directory to find licensed attorneys who practice in your area. It may be best to find an attorney who has experience practicing in the court where your order was entered and is familiar with the judges. Keep in mind that you don't have to get an attorney to represent you for the entire proceeding. You can hire someone simply to consult with you but not represent you, or you can hire them solely to speak for you at the hearing.
Search for forms or templates. If you decide not to use an attorney, you may be able to find a pre-approved court form that you can use to draft your motion. If no specific form is available, try to find a blank motion template or a copy of a similar motion filed in another case that you can use as a guide. You can ask the clerk about forms, or you can search on the court's website. Legal services organizations also may have forms and resources you can use. In addition to the motion itself, the court may require other forms for filing and procedural reasons. You typically can get these forms from the clerk's office. Just ask the clerk which forms you need. Keep in mind that you also typically must file a copy of the order along with your motion. If you don't already have a copy, you can pick one up at the clerk's office.
Decide which parts of the order you want dropped. A no-contact order issued after a domestic violence charge has two parts – a no-contact part and a no-abuse part. You can ask the court to drop the no-contact part while retaining the no-abuse part. The judge typically will be much more likely to drop the no-contact order if you want to maintain the no-abuse portion of the order. Since the purpose of the order is to protect the victim, maintaining the no-abuse portion of the order continues to do that while allowing the two of you to communicate. If you are the victim, you need to know that your wishes won't necessarily be determinative. Just because you want the court to terminate the order doesn't mean the judge will be satisfied that terminating the order is actually in your best interests.
Complete your documents. The motion itself will explain who you are as well as identify the no-contact order and when it was issued. Then you'll ask the judge to modify or terminate the order and explain the reasons you want this done. Stick to the facts, and provide concrete reasons why the order should be modified or terminated. For example, if you and the other party have a child together, you could state that you need the no-contact order dropped so you can communicate regarding the child's needs and arrange for visitation. This motion isn't the place to say that the domestic violence didn't actually happen, or that the victim lied about the incident. There's already been a conviction – this motion deals with what might happen in the future. The best way to get a no-contact order dropped is to convince the judge that domestic violence will never happen again in this relationship.
Filing Your Motion
Sign your documents. Once you've completed all of the documents you need to file your motion with the court, look them over carefully to make sure all your answers are complete and accurate. When you're satisfied, sign and date them using a blue or black ink pen. If you don't have an attorney, some jurisdictions require your motion to be verified, which means you must sign your motion in the presence of a notary public. After you've signed your documents, make at least three copies of everything you need to file with the court. The clerk will keep the originals. You'll need one copy for your records, plus one copy for the other party listed on the no-contact order and one copy for the prosecutor's office.
Take your forms and copies to the appropriate clerk. To initiate the process, you must file your motion and any other required documents with the clerk of the court that issued the original no-contact order. When you file your motion, you'll have to pay a filing fee – typically around a hundred dollars. If you don't think you can afford the filing fee, you can tell the clerk you want to apply for a fee waiver, but keep in mind that some courts don't allow fee waivers for motions like this, only for filing an entirely new case. If a fee waiver is available, the clerk will give you an application that requires you to provide information about your income and assets. They must be below a certain level established by the court for you to qualify. Typically you also qualify for a fee waiver if you're currently receiving certain kinds of public benefits such as food stamps. The clerk typically will schedule a hearing on your motion once it's filed. They'll put the hearing date on any notices, file-stamp your documents, and give the copies back to you.
Have the appropriate parties served. Once your motion is filed, it must be served on the other party to the no-contact order. Typically, you also must serve the prosecutor's office that handled the domestic violence charges. To complete service using the correct legal process, you must have someone over the age of 18 who is unaffiliated with the case hand-deliver the documents to the other parties. The easiest way to do this and make sure it's done properly is to pay a sheriff's deputy or private process server to deliver the documents for you. Some courts also may allow you to complete service by mailing the documents to the appropriate parties using certified mail with returned receipt requested. You typically can find the correct address for service of the prosecutor on the original order, or you can ask the clerk. Once service is accomplished, make sure the appropriate proof of service document is filed with the court.
Prepare for your hearing. Take some time to outline what you're going to say to the judge and organize your court documents and anything else you plan to present as evidence. If you're allowed to call witnesses, you may want to line people up to testify on your behalf. Keep in mind that despite your motion, you still cannot violate the no-contact order. If you were the defendant convicted of domestic violence, this is where having an attorney can come in handy, because your attorney can speak to the victim on your behalf. The judge will be more likely to modify a no-contact order if both parties are on the same page, but that still doesn't guarantee that the judge will go along with your wishes. Prepare a statement to deliver to the judge that explains why you want the no-contact order modified or terminated. Gather any documentation you may have to prove any points you've made in your statement. For example, if alcohol or drug abuse was involved in the domestic violence incident, and the perpetrator of the violence has since entered rehab, this can demonstrate a change in behavior that would justify dropping a no-contact order.
Appearing in Court
Show up for your scheduled hearing. Even if no one opposes your motion, the judge will not grant it if you don't show up on the date of your hearing. Plan to get to the courthouse at least a half hour before the time your hearing is scheduled, to give yourself time to go through courthouse security and find the right courtroom. It's a good idea to call the court clerk – or visit the court's website – before your hearing and check the list of items that are prohibited in the courtroom. That way you can make sure you don't inadvertently bring something, such as a cell phone, that will be confiscated. The judge may be hearing motions on other cases the same day, so when you get to the courtroom take a seat in the gallery and wait until your motion is called. The other party will be in the courtroom for the hearing. However, keep in mind that the order is still in effect until the judge decides to grant your motion, so don't make any effort to speak to them.
Explain your position to the judge. Since it's your motion, the judge typically has you speak first. Using your notes, tell the judge in your own words why you want the no-contact order dropped. Stick to the facts, and focus on the future rather than the past. Keep in mind that the no-contact order is preventative. The judge is more concerned with whether an act of domestic violence will happen again, not what happened previously. If you are the victim, don't think the judge will drop the no-contact order just because you asked. You still need to present facts that will demonstrate to the judge that the no-contact order is no longer necessary, or is actually harmful to continued positive relations. If the judge asks you a question, stop speaking immediately and answer that question. If you don't understand what was asked, you can ask for clarification.
Listen and respond to the prosecutor's arguments. The prosecutor who handled the original domestic violence charges may show up to oppose your motion to modify or terminate the no-contact order. If so, they have an opportunity to tell the judge why they think your motion should not be granted. The prosecutor may not necessarily argue against the no-contact order. After speaking with the victim and the victim's advocate, the prosecutor may believe modifying the no-contact order is acceptable. However, typically if the prosecutor shows up at the hearing, it will be to oppose your motion. Listen carefully to the prosecutor's arguments and take notes if there's anything to which you want to respond. Avoid making noises or creating a distraction while the prosecutor is speaking, and above all else don't shout out in the courtroom or interrupt them when they're speaking, even if they say something that angers you. After the prosecutor has finished, the judge may give you the opportunity to respond to things the prosecutor has said. The judge also may have questions for you.
Receive the judge's decision. The judge may let you know immediately whether your motion has been granted. Often, though, the judge will "take the matter under advisement," which means that he or she wants to look over all the information before issuing a decision. If the judge decides not to grant your motion, you may have the ability to appeal that decision, but you typically have a limited time to file any appeal. If you don't already have an attorney, it may be best to consult one if the judge doesn't grant your motion, so you can take advantage of any options available. On the other hand, if the judge grants your motion, the no-contact order will be lifted. However, the no-abuse portion of the order may still stand.
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