I am in the midst of a bitter divorce case that involved the opposing party filing the second restraining order (RO) in family court in the same case. The first one did not proceed since the filing party took the matter off calendar (meaning, she did not want to continue with the request for a RO).
In the second, both parties proceeded to litigate the allegations asserted. The judge correctly found after an extensive hearing that my client was not responsible for any criminal threats (Penal Code Section 422—a police report was filed) and any wrongdoing whatsoever. I am representing this client in both his criminal case (an alleged domestic violence) and a dissolution (divorce) case.
The criminal case due to extensive negotiations with the court will likely be dismissed – a deferred entry of judgment agreement. The divorce, notwithstanding the high net worth of my client, will be concluded with a stipulated judgment sometime in November. The second restraining order proceeded to a full-blown hearing with witnesses since it was critically important that the plea terms in the criminal case not be affected.
Disproving criminal allegations are not easy and fighting a protective order or a restraining order against you requires a skilled trial attorney. The standard of proof in the civil case (family law) is preponderance of evidence and the criminal case remains at beyond a reasonable doubt. The effect of having an order against you is the same if implemented by either court. Such terms are staying away from the protected person, firearms are surrendered at the local police station, and if there are children, custody may be solely granted to the protected individual. Therefore, if the allegations are patently false, you must be ready and prepared to fight it. Here is a brief synopsis of these types of orders.
Many clients have asked what type of circumstances one is allowed to get a court ordered protective order (“PO”) or restraining order (“RO”). A lawyer must convince the judge that the other party whom you are trying to get an order for has (1) hurt you; (2) made you feel afraid; (3) tried to get you to not testify; or (4) threatened to do any of these things. If your family is at-risk, an order may be broadened to include all individuals that you can prove are also in fear.
Even if you do not have a green card, you can still obtain an order. The courts are not required to advise the Department of Homeland Security Immigration and Customs Enforcement. The judge will not inquire about your immigration status. The judge, does however, inquire as to the details of the necessity to protect you. I advise my clients to gather documentary evidence of abuse, retaliation or any threats. I like to provide to the judge concrete incidents and not abstract or hypothetical instances. Thus, it is best to record “nasty or threatening” messages, take photographs of acts of vandalism, or keep emails or any written communications which are “dangerous” in tone.
The procedural requirements of filing this motion are best handled by an experienced attorney. Certain documents must be completed and filed with your local Clerk’s Office. I will request an experienced process server or even the local Sheriff’s Department to serve the opposing party. It is crucial to serve appropriately all necessary parties. The first thing the judge is going to require is proof of proper service.
If the opposing party is present, a hearing before the judge will take place allowing both sides to examine (direct, cross, re-cross) the parties and witnesses. As a result, an attorney who is experienced in questioning witnesses is a must. In addition to strong documentary evidence, I also like to bring forward supporting witnesses. It is crucial, if available, to bring in percipient witnesses to any threats or violence that has occurred between my client and the opposition.
I also protect my clients in both the criminal and civil arena, if applicable, by obtaining both orders in these two arenas. I have had clients on both sides. If you are served with documents advising you that someone is seeking to place a PO or RO or both against you, hire an experienced attorney. Your rights to be heard must not be trumped. This is especially true in scenarios involving child visitation or any other personal relationship (ie. co-workers, neighbors). Keep in mind, if you disobey the order, you can be arrested and criminal proceedings may be initiated.
Whether you are the one seeking the order or the one fighting the order, hiring an effective attorney is critical to insuring that your rights are not infringed upon. These orders are taken very seriously by both the court system and the law enforcement agencies. Consequently, filing or responding to them must be done diligently.
If you have additional concerns or questions, feel free to email Atty. Castaneda at [email protected] or call our office at 310-601-7144.