What to Do When the Petitioner Brings Up New Allegations at Your Restraining Order Hearing

By Veronica T. Barton, California domestic violence defense attorney and creator of DEFEAT the DVRO

The short answer

When the petitioner says new things at your restraining order hearing that they never wrote in their application for the temporary restraining order, wait until they are done, and then use cross-examination. Cross-examination is just asking the petitioner questions. There is a four-step template: you remind them what they testified, get them to agree it was a serious instance of abuse, point out that they submitted a declaration describing all of the abuse they claim, and ask whether it is true that nowhere in it do they describe this new allegation. Use it only for important details.

The problem: new allegations that were never in the application

In this post, I explain what you should do if the petitioner at a domestic violence restraining order hearing brings up new allegations that they never wrote in their application for the temporary restraining order.

Here is the situation. You get a temporary restraining order, along with many allegations in the application written by the petitioner, the person asking for the restraining order. Many of them may not be true. Then you show up at the hearing, and they describe things that they never wrote in their application. How do you bring that up to the judge? What do you do with that? Are they allowed to do that? Is that significant?

This is a really frustrating problem to encounter, but there is a way to use it to your advantage, and I'll teach it to you right now. Trust me, it is easy, and you'll have a template.

The technique is a form of cross-examination

The technique is a form of cross-examination. Cross-examination is just asking the other side questions. If you're the respondent, that means asking the petitioner questions.

At the restraining order hearing, the petitioner gets a chance first to tell their side of the story. The judge may ask the petitioner, "I read your papers. Is there anything else that you want to say?" Now they describe many things that are not in their paperwork, and some may be much more severe than what they put there. After they're done speaking, you will get a chance to ask the other side questions.

I have seen so many people get this wrong. If you've been to court for a restraining order before, maybe it got continued one time and now you're trying to prepare yourself, then you know that you sit there all day. You see many of these restraining order hearings, and you see people getting them wrong.

Many people do not ask the other side questions because they have no idea how to ask questions. Other people ask questions in an aggressive, ineffective manner, and they leave such a terrible impression on the judge that it would be better if they didn't ask questions at all.

Attorneys do ask questions, and it's not rocket science. There are formats and templates for how to do this. There are only so many different types of questions that you can ask, and so many different ways to do it. This one is important.

An example: the gun that was never in the paperwork

The petitioner has now finished their testimony, and it's your turn to ask questions. How do you bring this up? I'll give you a template for this, but let's go through an example first.

Say the new allegation that was not in their paperwork was that at one point during the relationship you pointed a gun to the petitioner's head. That is serious stuff, but it wasn't in her paperwork. In that situation, you would ask four questions.

Question 1: "You testified a few minutes ago that I pointed a gun at your head."

This directs the judge and the petitioner to what you're talking about, so that the judge understands where you're going with this and everybody is on the same page.

Question 2: "Pointing a gun at your head was a pretty serious instance of abuse, correct?"

Here you get the petitioner to admit that this was something significant (and this is an extreme example). The petitioner will readily say yes to this. They want it to seem like a serious instance of abuse, and they will probably be very happy that you asked, because they don't know what's coming.

Question 3: "You submitted to the court a declaration describing all of the abuse that you claim I committed."

That is the application for the temporary restraining order that the petitioner submitted to the court. In that packet, they are giving all the reasons why they need a restraining order against you, all the most important allegations, the most serious things. You would expect them to put the most serious things in there. You would not expect them to write about the one time you yelled at them, or another time you grabbed their arm too tightly, but leave out this whole gun to the head thing.

Question 4: "Isn't it true that nowhere in your declaration do you describe me pointing a gun at your head?"

They would have put it in there if it was important. You're implying to the judge that this didn't happen and that the petitioner made it up between the time they filed the temporary restraining order request and the time of the hearing.

I give you cross-examination scripts in Step 2 of DEFEAT the DVRO.

The template

Here is the template.

1. "You testified a few minutes ago that [summary of the brand new allegation]."
2. "[Summary of the brand new allegation] was a pretty serious instance of abuse, correct?" (the same summary you used in step one)
3. "You submitted to the court a declaration describing all of the abuse that you claim I committed."
4. "Isn't it true that nowhere in your declaration do you describe [summary of the brand new allegation]?"

The only thing you fill in is the summary of the brand new allegation.

You will not know what they will say, so just fill in the blank

When you're going into the restraining order hearing, you don't know what brand new allegations they're going to make on the spot, especially if it didn't happen and they're making it up. You have no way to know what they will stand there and make up. All you need is your template and the summary of the brand new allegation.

In another example, say that she gets up on the stand and says that you threw a bottle of whiskey at her head on Thanksgiving Day. It narrowly missed her head, hit the wall, fell to the ground and shattered. The summary of that would be "threw a bottle of whiskey at your head." Step one would be, "You testified a few minutes ago that I threw a bottle of whiskey at your head." You use that summary of the brand new allegation in each step, so there is not much to think about during your hearing.

You can summarize it, and it doesn't have to be absolutely perfect. Say she said you punched her in the face and gave her a black eye, or punched her in the mouth and made her lip bleed. That would be fine too. Summarize it as best you can and fill in the template. You're doing it as you go.

Why this matters: make it easy for the judge to see

One of the reasons for doing this is that the judge has so many of these cases every day. Imagine focusing on something for eight hours, with different people's stories coming in and out. Your mind wanders. You have these documents in front of you, but you probably don't have much time to review them. These courts are slammed.

Point this out to the judge. Make it easy for the judge. Present your evidence in a way that makes it very easy for the judge to see, "Wait a second, that is a serious allegation. You mean to tell me that she didn't include that in there? Why would she bring it up today?"

These hearings are all about credibility, and you want to do anything you can to throw rocks at the other side's credibility. The judge only needs to find in one side's favor by slightly more than 50 percent, ever so slightly, to rule in their favor.

The judge has about a minute to decide. In fact, the judge has even less time than that. Generally the judge gives you a decision immediately, as soon as everybody is done presenting evidence. So the judge probably decides fairly early on which side to pick. Take these opportunities to discredit the other party whenever it's important.

Only use it for an important detail

Only use this when it's an important detail. Use it when it's a new allegation of abuse, or something that makes one of the other allegations in the petitioner's paperwork much worse. For example, maybe they describe some abuse in the paperwork, but now they're saying they had some horrible injury from it that they did not describe in their paperwork. That is when to bring it up.

If it's something very minor, the judge will grow impatient, you will look petty, and it could hurt your credibility. Be careful with this, use your best judgment, and you can do it.

Weigh the scales in your favor

These hearings are set up for people to represent themselves, but usually people don't know what to do to win these hearings or to swing the pendulum in their favor. The judge ends up looking at two people, having no idea who is more credible because neither party knows what they're doing, and it's like flipping a coin.

If you can weigh the scales even a little more in your favor with techniques like this, and with objections, you have a very good chance at winning the hearing.

Frequently asked questions

What do I do if the petitioner says things at the hearing that were not in their application?

Wait until the petitioner is done speaking. You will then get a chance to ask the other side questions. Use cross-examination and the four-step template, filling in only the summary of the brand new allegation.

How do I cross-examine the petitioner about a new allegation?

Ask four questions. First, say, "You testified a few minutes ago that" followed by the summary of the new allegation. Second, say the summary followed by "was a pretty serious instance of abuse, correct?" Third, say, "You submitted to the court a declaration describing all of the abuse that you claim I committed." Fourth, ask, "Isn't it true that nowhere in your declaration do you describe" followed by the summary of the new allegation.

What if I can't summarize the new allegation perfectly on the spot?

It doesn't have to be absolutely perfect. Summarize it as best you can and fill in the template. You are doing it on the fly.

Should I use this for every new detail the petitioner adds?

No, only use it when it's an important detail, such as a new allegation of abuse or something that makes one of the other allegations in the paperwork much worse. If it's something very minor, the judge will grow impatient, you will look petty, and it could hurt your credibility.