Q. When my ex and I first started our divorce process, we were both angry. We both threatened to call the police on the other regularly. On one occasion when I refused to go sleep on the couch over a weekend because I had hurt my back, she got particularly angry. She threatened to call the police if I didn’t leave the bedroom. Well, I didn’t leave, and she made good on her threat. She said she was afraid to sleep in the same room as me.
I was told to leave, and an emergency judge granted her a restraining order over the weekend. We appeared in court the following Monday morning in front of our divorce judge who vacated the order and said it never should have issued in the first place because my ex failed to meet the standard. Shortly after that we settled the divorce.
Now, post-pandemic, I am traveling regularly for work again. Every time I re-enter the country I get detained at the airport and questioned because my name shows up in the domestic violence record keeping system when my passport is scanned. Is there anything I can do about getting my name out of this system?
A. Unfortunately, there is nothing you can do at this juncture to get restraining order expunged. If, at the time the order was vacated, you were able to get the judge to make a finding that the issuance of the order was the product of fraud on the court, that would be a different matter. The legal standard for expungement is that you have to prove by clear and convincing evidence that the order was obtained with an untruthful application or through fraud on the court.
Right or wrong, the rationale behind maintaining the DVRS is to allow judges and law enforcement officials to have as much information as possible on a potential suspect’s dangerousness. Of course, this theory does nothing to protect people on the wrong end of the restraining orders which never should have entered in the first place.
The best way to fix this problem is to lobby the legislature to revise the statute. Indeed, in a recent appellate decision, a concurring justice urged the legislature to do just that, suggesting expungement in instances where an appellate court finds there was insufficient evidence to issue an order in the first place.
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