Restraining Order Proceedings - Issues and Challenges for Defendants

Here is an excellent restraining order article I found on the internet at http://mensnewsdaily.com/2009/10/24/restraining-order-proceedings-issues-and-challenges-for-defendants/


Restraining Order Proceedings - Issues and Challenges for Defendants


Saturday, October 24, 2009
By Dean M. Schreyer
The purpose of this article is to introduce the reader to some of the challenges faced by defendants (the “accused”) and their children in restraining order proceedings under the California Family Code, and to offer some suggestions about how best to negotiate those challenges.

This article assumes that a temporary restraining order (“TRO”) might be or already has been issued against the accused, and that there has not yet been a formal hearing to decide whether a “permanent” restraining order should be issued.

This article addresses restraining orders in family law actions only. It does not address restraining orders or other domestic violence issues in either criminal or civil actions. Furthermore, the issues and rules addressed in this article may be different outside of California.

Summary

Domestic violence restraining orders may result from conduct that involves no domestic relationship or actual violence of any kind, and from no reliable supporting evidence of any kind.

Unfortunately, restraining order defendants and their children face many potentially disastrous consequences including, but not limited to: criminal prosecution; financial ruin; and, loss of home, family, pets, property, income, reputation, employment, career, multiple constitutional and civil rights, freedom of movement, and parent/child relationships.

Further, the defendant’s mere appearance in court during restraining order proceedings will probably result in immediate arrest on outstanding warrants, and revocation of probation and parole status, even if the accusations against the defendant are found to be false.

This article therefore concludes by recommending vigorous opposition to all false or exaggerated applications for restraining orders.

Discussion

“TEMPORARY” RESTRAINING ORDERS ARE STILL RESTRAINING ORDERS, AND MUST BE RESPECTED AS SUCH

If a “temporary restraining order” or “TRO” is in effect, the court has not yet decided whether it will issue any “permanent” restraining orders against the accused. This is because the court has yet to conduct a formal hearing.

However, the “temporary” restraining order is in effect until that hearing. Please note that the law requires the defendant to obey all restraining orders, to the letter, without exception, notwithstanding that these orders are still only “temporary.” Failure to respect such restraining orders is a crime, and is subject to imprisonment and any other consequences that may flow from committing a crime.

For example, if the temporary restraining orders forbid the accused from contacting the accuser, the accused could be convicted of a crime and sent to jail for making so much as one phone call to the accuser. Indeed, the accused could be found criminally liable for accepting a phone call from the accuser, if the accused continues the phone call after finding out who it is.

As another example, if the temporary restraining orders forbids the accused from being within 100 yards of the accuser, the accused might be convicted of a crime and sent to jail for attending a church, restaurant, school, or social event, if the accuser happens to be there at the same time.

Further, if the accused violates the “temporary” restraining orders, the court is required to consider that when deciding whether or not to make the restraining orders “permanent.”

Hence, it is absolutely essential that the accused follows all restraining orders, to the letter, whether “temporary” or “permanent,” at all times, without exception.

DOMESTIC “VIOLENCE” RESTRAINING ORDERS MAY RESULT FROM CONDUCT THAT INVOLVES NO ACTUAL VIOLENCE OF ANY KIND

As the label suggests, domestic violence restraining orders were originally intended to prevent violence between persons in domestic relationships. However, since January 2000, the grounds for getting restraining orders have greatly expanded. The defendant may now face domestic violence restraining orders for: stalking; threatening; harassing; telephoning; directly or indirectly contacting by mail or otherwise; coming within a specified distance of, or disturbing the peace of, the accuser.

Note that none of these behaviors needs to involve violence of any kind.

“DOMESTIC” VIOLENCE RESTRAINING ORDERS MAY RESULT FROM CONDUCT THAT INVOLVES NO ACTUAL DOMESTIC RELATIONSHIP OF ANY KIND

As the label suggests, domestic violence restraining orders were originally intended to protect persons in domestic relationships. However, the defendant may now face domestic violence restraining orders arising from alleged conduct toward a family or household member of the accuser, whether or not the defendant has a domestic relationship of any kind with the family or household member.

RESTRAINING ORDERS ARE OFTEN ISSUED REGARDLESS OF ACTUAL MERIT

For the reasons set forth below, courts often issue restraining orders without merit.

A. Evidence Does Not Need To Be Reliable

Unlike criminal convictions, the reliability required of the evidence supporting restraining orders is very low.

In criminal proceedings, the court requires proof “beyond all reasonable doubt” before finding the allegations against the accused to be true. In other words, the court must be sure enough to bet someone’s life on its conclusion. Because sometimes it does.

Restraining orders, however, only need proof “by a preponderance of the evidence.” The judge needs only to find the allegations are merely slightly more likely than not. Hence, if the judge believes that it is only 51% likely that the defendant is “guilty,” the court must issue the restraining order. Even though the odds on either side are almost equal.

B. Public Opinion Improves The Odds Of Meritless Restraining Orders Yet Further

Further, public opinion lowers the practical standard of proof yet further, by placing pressure on the court to issue restraining orders, regardless of merit.

Any court will be ineffective, unless the public has faith in the court’s decisions. Courts are therefore inclined to avoid any adverse publicity that would erode that public trust. This can cause pressure on the court to cater to public opinion.

Unfortunately, current public opinion rushes to condemn anything labeled as violence, whether or not any actual violence is involved. This pressures the court to follow suit. The judge is thereby inclined to err on the side of caution (rather than on the side of justice), by issuing domestic violence restraining orders in spite of insufficient supporting evidence.

FIREARMS AND AMMUNITION

If the accused owns or possess any firearms, the law requires the accused immediately to relinquish all such arms and ammunition, either to the police or to a licensed gun dealer. Furthermore, the court will require the accused to provide proof that the accused has done so.

The accused is also required to have no contact with any firearms or ammunition at any time, while any restraining order is in place, whether or not the restraining order is “temporary” or “permanent.” If the accused is found to be in possession of so much as one bullet, the accused could be imprisoned for years.

The accused must therefore immediately relinquish and stay away from all firearms and ammunition at all times, unless and until all restraining orders are either dismissed or expired.

PAST CONVICTIONS, WARRANTS, PAROLE, PROBATION, PRIOR RESTRAINING ORDERS

If the accused has a past conviction for a “violent” or “serious” felony, or for any misdemeanor involving domestic violence, weapons, or other violence, the court is required by law to consider these factors when deciding whether or not to issue permanent restraining orders. And if the accused has a child, the court must also consider these factors when deciding upon how much contact, if any, the accused and the child will be allowed to have with each other.

If the accused has any outstanding warrants, or if the accused is on parole or probation status, the court is required to consider these factors as well. The court is also required to notify the appropriate authorities. Law enforcement will then be required to execute the warrant and arrest the accused immediately, and the parole or probation officer will be required to revoke the parole or probation. Even if the “permanent” restraining order never issues.

POTENTIAL CRIMINAL LIABILITY

If law enforcement learns about the accusations against the accused, this may result in criminal prosecution.

Further, anything that the accused may say, and any other evidence that the accused may produce, may be used against the accused in criminal proceedings. The accused may therefore be required to choose between the 5th Amendment right to refrain from testifying against one’s self in criminal proceedings, and the due process right to testify on behalf of one’s self in the restraining order proceedings.

It is therefore essential that the accused immediately consults with a criminal defense attorney with expertise in “domestic violence” criminal law.

OTHER POTENTIAL CONSEQUENCES OF RESTRAINING ORDERS

In addition to the above, restraining orders can now carry the following potential consequences:

1. Defendants may be required to continue to pay for a home in which they are not allowed to stay, and for other property which they are not allowed to use, even if the defendant owns it and the accuser does not.

Defendants who share a home with the accuser may be ordered out of the home, with little or no notice, and sometimes with no opportunity to gather records, tools, clothing or other personal items. The defendant may then be ordered to surrender the defendant’s home, car, pets, and any other property, into the possession of the accuser, indefinitely. And to continue paying for any debt service associated with such property, indefinitely.

This can occur even if the home or other property is owned or leased exclusively by the defendant, and even if the accuser has contributed nothing toward acquiring or maintaining that home or other property.

2. The court might include the defendant’s pets among the “persons” protected by the restraining orders.

No kidding! California Family Code §6320(b) states, in part: “The Court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.”

3. Defendants who are married to the accuser, or who share children with the accuser, may lose some or most of their income as child support, or spousal support, or both.

4. Restraining orders are now published on various state and national databases. Government entities and various other interested parties have access to these databases, and the trend is toward increased access. Access to this information creates the potential for substantial damage to the defendant’s reputation, and that access is likely to increase.

If this trend continues, defendants might eventually be labeled as “registered domestic violence perpetrators,” or something similar.

5. If the defendant’s employment requires interaction with firearms or children, the defendant will probably lose that employment, and may be unable to find similar employment ever again. Employment requiring any other form of public trust may also be at risk.

6. If the defendant provides most or all of the family’s income, and then becomes unemployed, the entire family may become destitute.

7. The court is required to assume that primary custody between defendants and their children is contrary to the children’s best interests. The court also has the power to restrict or eliminate all contact of any kind. Hence, defendants may lose most, or all, contact with their children. Worse, the children may lose contact with one of their parents.

8. Defendants may be prevented from knowing the location of the accuser and of the defendant’s children. Restraining orders are valid without explicitly stating the address of the accuser, or the location of the accuser’s residence, school, or employment, or of the school or child care of the accuser’s child. Further, the court is usually required to prohibit defendants from taking any action to obtain the address or location of the accuser, or of the family members, caretakers, or guardian of the accuser.

9. Restraining orders can be permanent. The initial maximum duration is 5 years. However, that duration can be increased, just for the asking. Family Code §6345(a) states, in part:: “These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order . . . ” In other words, the court can extend restraining orders indefinitely, if the accuser later asks for it, basically for no reason other than the request itself. Hence, defendants might face the consequences described above, forever.

10. The court can order defendants to attend, pay for, and successfully complete a “batterer’s program.” Such “programs” may require attendance (and payment) for 52 weeks.

11. The court can order defendants to pay restitution to the accuser for loss of earnings and out-of-pocket expenses that the court concludes were a result of the defendant’s alleged abuse. These expenses can include the cost of medical care and temporary housing, among other expenses.

12. The court can order defendants to pay for part or all of the accuser’s attorney fees and costs in connection with the restraining order proceedings.

13. Defendants may face consequences in other proceedings. The accuser can sue for additional damages in a civil action. The government may prosecute in a criminal action.

Conclusion

In summary, restraining order defendants risk:

•loss of family;
•loss of home;
•loss of property;
•loss of income;
•loss of reputation;
•loss of employment;
•loss of career;
•loss of the constitutional right against self-incrimination, or of constitutional and civil due process rights;
•loss of the constitutional right to bear arms
•restricted constitutional right to freedom of speech;
•restricted constitutional right to freedom of association;
•restricted freedom of movement;
•financial ruin, for the accused and for the family of the accused;
•loss of constitutional parenting rights;
•devastation of a child’s parental relationship with the accused;
and,

total loss of all constitutional and civil rights, and of all freedom, upon conviction for any deviation outside of the numerous, complicated, confusing, and draconian limits imposed by these orders.

Forever.

Because the judge suspects that the accused made one phone call too many.

It is therefore absolutely essential that restraining order defendants vigorously defend against any request for restraining orders of any kind.

ABOUT THE AUTHOR: Attorney Dean M. Schreyer is licensed to practice in California, and serves as a staff attorney at Men’s Legal Center in San Diego. To find out more about either Mr. Schreyer or Men’s Legal Center, please go to: www.menslegal.com.

The material on this document is intended for informational purposes only, and does not constitute legal or other professional advice for any purpose. No attorney/client relationship, and no confidential relationship of any kind, is formed by reviewing or using this material in any way, or from any direct or indirect contact with any attorney arising from that review or use. If you need legal or other professional services, consult with the appropriate, competent attorney or other professional





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