Can Oklahoma Protective Orders Go Away?
Video Transcribed: Can a protective order be vacated in Oklahoma? I’m Oklahoma attorney James Wirth, and I’m about to answer that question for you.
Okay, so can a protective order be vacated in Oklahoma? So first off, we want to talk about what vacating a protective order is. Okay. If there’s an order in place and it’s vacated, it’s not the same as the protective order expiring. When it’s vacated, it undoes the granting of it in the first place. So it’s like it never happened under those circumstances. So it’s better to get it vacated than just to have it expired.
So why would you want it vacated? Okay, well, obviously, if the order is in place, you don’t want it to be in place anymore, rather than waiting for it to expire, you would want it to be vacated. Also, if the protective order was in place, but it has expired, in order to get the protective order expunged, if it was a final protective order, you’ve got to get it vacated first, which you’d want to do.
Also another reason, if there’s a bogus protective order and then the person is charged with a violation of the protective order, then you may want to get the protective order vacated in order to undermine the criminal charge in the case. So those are the few reasons to get a vacated.
So how does one get a vacated? Okay, well, first off, it has some similarities to a regular civil case, trying to get an order vacated, but it also has some specific things. So if you’ve got a protective order that’s filed against you, and you fail to appear for court and then it’s granted because you failed to appear, you’re going to want to get that vacated. And under those circumstances, you want to file the motion to vacate within 30 days because that’s where the court has plenary authority, meaning complete authority over their order.
During those 30 days after it’s entered, the court can vacate, modify the order for any reason or no reason at all. So you would request that it be vacated simply because we want an order based on the merits. We want a decision on the merits. The courts favor decisions on the merits, and if it’s based on somebody not appearing, that’s not on the merits. That’s a winning argument, if it’s filed within 30 days in most civil cases, including in protective orders.
Okay. If it’s outside of 30 days, in a general civil case, you would have to have a much greater reason. There’d have to be some sort of defective service or irregularity in process or fraud upon the court. It’d have to be a very strong reason to vacate a civil order after it’s been in place for 30 days. So if you have any of those, that could be applicable to protective orders, but also in protective orders, the court has more kind of general authority, unlike the general civil stuff that requires strict proof of those various things.
This is what the statute provides, and forgive me for reading this, but this is what it provides. Upon the filing of a motion by either party to modify extent or vacate the protective order, a hearing shall be scheduled and notice given to the parties. At the hearing, the issuing court may make such action as is necessary under the circumstances.
So that’s very broad authority that the statute gives to the court there, which means unlike an irregular civil case, if it’s outside of 30 days or outside the time limits for those other options, you may still be able to get it to vacated if you have the right reason to do so. So generally with my office, if we’ve got a very old protective order that has expired long ago but it’s still in place, still on public record, anybody searching online can still pull it up and they want it to go away, they’re not eligible for expungement unless they get it vacated. So we often file, just try to get those vacated.
We’re often successful on those old protective orders, getting them vacated, and then we can follow up after a waiting period to get it expunged. So that’s what you may want to do under your case, depending where you fall in there.
If you failed to appear and had it granted, you’re going to want to file the vacated quickly. If there’s some reason like that, you didn’t have proper notice, had one of those cases recently that we got vacated where the notice of service filed by the sheriff was ambiguous. It looked like they had service based on the way they wrote it. When in actuality, they made four times and didn’t get service. That’s grounds to get it vacated. We got it vacated there.
So if any of those occur to you, you’re going to want to talk to an attorney about your specific circumstances and see what you qualify for. So don’t take my general information here for you. Just take that as notice. You need to talk about your cases with an attorney. If you want to talk with me, give me a call, (918) 932-2800 or go online wirthlawoffice.com.
Tags: expungement, protective orders