My wife filed a for a TRO and it was granted. Both her and our son are listed on the TRO. The hearing was continued until Nov. 20 but today my wife's father called me wanting to know about a payment that my wife and I owe him. I told him that we could work something out if I would be allowed to see my son. Is there anyway that my wife could get the restraining order lifted before the hearing on Nov.20 or will we have to wait until then? We also were sent to mediation on Sep.15 to decide custody and visitation for our son but I would rather work it out without the court being involved. Is there a way to do this even though the court has already set dates for the hearing?

She may be able to drop the charges. It depends on the prosecutor.

There isn't any prosecutor. She was only granted a temporary restraining order until the hearing to show cause for a permanent restraining order. No criminal charges were filed and the whole thing is hearsay anyway. I produced witnesses and testimony to counter her claims and the hearing was postponed till a trial on Nov. 20. I just want to know if there's a way for her to end the restraining order before the hearing so I can visit my son.

If there is a hearing there is a prosecutor.

This is a family law question Scott. If you don't know what your talking about then don't answer the question.

Maybe in your area restraining orders are solely within the realm of Family court. But, from my knowledge a RO is a criminal proceeding. It falls under Domestic Violence which is a criminal act.

I have been informed that I can make an objection to a pro temp judges orders within 10 days. I am wondering if this is worth pursuing and what will be the outcome of such an objection? There is currently a TRO in effect and I believe that The TRO was issued incorrectly based on hearsay and no factual evidence such as police reports or even witness statements. I only have 2 days to object. Should I inform my lawyer of this concern?

Yes, if you have an attorney you should keep them informed of everything.

TROs are generally granted just for the asking to err on the side of safety. Its when the TRO is made permanent that real evidence needs to be given. If no protest is made the TRO will generally be made permanent as a matter of course.

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Originally Posted by ScottGem

Yes, if you have an attorney you should keep them informed of everything.

TROs are generally granted just for the asking to err on the side of safety. Its when the TRO is made permanent that real evidence needs to be given. If no protest is made the TRO will generally be made permanent as a matter of course.

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Sorry for the lip Scott. I got a little frustrated. Divorce is difficult and I really miss my son. I'm going to miss his second b-day this Saturday. Sorry for the disrespect. Maybe you have some info that could help me to be able to see him. Thanks.

In California restraining orders issued in family court are civil proceedings. Yes, there can be a parallel criminal case with criminal restraining orders but that is not always the case. I'd say that the majority of restraining orders in California are civil with no criminal companion action. So there is no prosecutor.

Yes, you can modify the TRO before trial or terminate it! File a motion to modify or terminate the restraining order or submit a stipulation to do so.

Take a look at California Family Code Section 235, which provides:

"Nothing in this part precludes either party from applying to the court for modification or revocation of the temporary restraining order provided for in this part or further temporary orders or an expanded temporary ex parte order. (Stats. 192, c. 162 (A.B.2650), para. 10, operative Jan. 1, 1994.)"

Have your lawyer contact your ex about stipulating to modify/terminate the TRO. If she won't agree, file a motion, which you should be able to get heard before your trial date.

Just as an aside, I've had several cases (in fact one right now) where there is both a criminal DV case ongoing and a family court TRO in place arising out of the same incident. The criminal court issues its own restraining order and the family court has its own. So there are two restraining orders running concurrently and the family law judge always issues the standard warning that if the criminal restraining order is more restrictive than the family court TRO, the criminal one must be followed. In other words, the more restrictive of the two takes precedence. Further, the family court TRO always trails the outcome of the criminal DV case. That is, the family court just reissues the TRO until the criminal case is over and only conducts its trial after disposition of the criminal DV action because of the defendant's 5th Amendment right to remain silent. The idea is that this right would be violated if the civil TRO trial were allowed to go forward before the criminal case. The reasons are obvious.

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Originally Posted by morgan duncan

I have been informed that I can make an objection to a pro temp judges orders within 10 days. I am wondering if this is worth pursuing and what will be the outcome of such an objection? There is currently a TRO in effect and I believe that The TRO was issued incorrectly based on hearsay and no factual evidence such as police reports or even witness statements. I only have 2 days to object. Should I inform my lawyer of this concern?

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I think it's a waste of time objecting. The pro tem's orders have to be approved by one of the regular judges I believe and this is a bit of a formality. If the objection is based on some factual call of the pro tem in simply issuing the TRO, what's the point? On what basis are you going to object, you just don't like his decision, don't like his interpretation of the evidence? You can't win on that basis. The case hasn't even been tried yet.

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Originally Posted by cadillac59

In California restraining orders issued in family court are civil proceedings. Yes, there can be a parallel criminal case with criminal restraining orders but that is not always the case. I'd say that the majority of restraining orders in California are civil with no criminal companion action. So there is no prosecutor.

Yes, you can modify the TRO before trial or terminate it! File a motion to modify or terminate the restraining order or submit a stipulation to do so.

Take a look at California Family Code Section 235, which provides:

"Nothing in this part precludes either party from applying to the court for modification or revocation of the temporary restraining order provided for in this part or further temporary orders or an expanded temporary ex parte order. (Stats. 192, c. 162 (A.B.2650), para. 10, operative Jan. 1, 1994.)"

Have your lawyer contact your ex about stipulating to modify/terminate the TRO. If she won't agree, file a motion, which you should be able to get heard before your trial date.

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My lawyer doesn't seem to be very proactive. I feel like he just doesn't care that I have to wait until Nov.20 to see my son. Of course it will probably earn him more money to drag it out. I was referred to another lawyer who may be a little more concerened about my case. Do I have to have a lawyer file for termination or modification of the TRO? What will my grounds be for asking that the TRO be modified or terminated? Her decleration didn't say I abused the kids or anything, just that she was fearful I would abscound with them which is in fact what she has done. Thanks for your post Cadillac59

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Originally Posted by morgan duncan

My lawyer doesn't seem to be very proactive. I feel like he just doesn't care that I have to wait until Nov.20 to see my son. Of course it will probably earn him more money to drag it out. I was refered to another lawyer who may be a little more concerened about my case. Do I have to have a lawyer file for termination or modification of the TRO? What will my grounds be for asking that the TRO be modified or terminated? Her decleration didn't say I abused the kids or anything, just that she was fearful I would abscound with them which is in fact what she has done. Thanks for your post Cadillac59

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If you are represented by a lawyer your lawyer has to act for you until you dismiss him or substitute someone else in his place. But, yeah, you have to file a motion to do anything now with the TRO before the trial date. What are the grounds? I suppose that you want to see the kids, haven't seen them, they are suffering over this when they didn't do anything to deserve it and it's unfair to make them and you wait months to see each other when your relationship with them had nothing to do with why your ex brought the TRO in the first place. It's absurd that you have to wait three months to have access to your kids. In fact, it's disgraceful. Once you've finished mediation try filing an ex parte with alternative relief being an OST (order shortening time) to set a hearing on your OSC for custody/visitation. That's what I'd do if you were my client and that's what all my friends who do this kind of work would do for theirs .

I wouldn't worry about trying to terminate the restraining order yet. Let that go to trial in November. Just ask for custody and visitation orders. At the very least you are entitled to those right now. You'll get them if you ask for them before November. If you don't you won't.

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Originally Posted by cadillac59

If you are represented by a lawyer your lawyer has to act for you until you dismiss him or substitute someone else in his place. But, yeah, you have to file a motion to do anything now with the TRO before the trial date. What are the grounds? I suppose that you want to see the kids, haven't seen them, they are suffering over this when they didn't do anything to deserve it and it's unfair to make them and you wait months to see each other when your relationship with them had nothing to do with why your ex brought the TRO in the first place. It's absurd that you have to wait three months to have access to your kids. In fact, it's disgraceful. Once you've finished mediation try filing an ex parte with alternative relief being an OST (order shortening time) to set a hearing on your OSC for custody/visitation. That's what I'd do if you were my client and that's what all my friends who do this kind of work would do for theirs .

I wouldn't worry about trying to terminate the restraining order yet. Let that go to trial in November. Just ask for custody and visitation orders. At the very least you are entitled to those right now. You'll get them if you ask for them before November. If you don't you won't.

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Thanks cadillac59. Your post has been very helpful. I will see if my lawyer will file these motions and if not then I plan on talking to a lawyer that was referred to me by a group called Shared Parenting of America. They have been really helpful with information on how to receive equal custody and visitation. Aparrently Fresno courts can be biased when it comes to custody. I feel a little itiminated by mediation. What types of things am I allowed to produce to the mediator? For example my declaration on the TRO, statements from people at church or parenting class attendance.

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Originally Posted by morgan duncan

Thanks cadillac59. Your post has been very helpful. I will see if my lawyer will file these motions and if not then I plan on talking to a lawyer that was refered to me by a group called Shared Parenting of America. They have been really helpful with information on how to recieve equal custody and visitation. Aparrently Fresno courts can be biased when it comes to custody. I feel a little itiminated by mediation. What types of things am I allowed to produce to the mediator? For example my declaration on the TRO, statements from people at church or parenting class attendance.

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At mediation you can present anything you want. The mediator might not pay attention, but it won't hurt to try. You'll do fine so don't worry about it. I can tell from the way you have presented yourself here that you are a decent guy who just wants to be a dad to his kids. So just be honest and sincere at mediation and you'll be okay. And that's not patronizing. It's true.

You've got to do the motion, as I said, and since mediation is right around the corner you should probably just wait until it is over and then file the ex parte/OST.

I do this for a living (I'm not trying to sound haughty but it's true) and I'm a Certified Family Law Specialist in California and I've been a lawyer for 20 years. Two of my good friends are also Certified Family Law Specialists in my county and we talk all the time about cases and judges and how to do things. The point is, I'm not one of these participants who has a disclaimer saying my advice in not a legal opinion. No. My advice IS a legal opinion in California and I'll stake my reputation on it. I'm also admitted to practice in Washington State but I am careful about giving advice about Washington because I don't live or practice there (even though I am licensed in Washington and am an active member of the Washington State Bar Association [WBSA]).

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Originally Posted by cadillac59

At mediation you can present anything you want. The mediator might not pay attention, but it won't hurt to try. You'll do fine so don't worry about it. I can tell from the way you have presented yourself here that you are a decent guy who just wants to be a dad to his kids. So just be honest and sincere at mediation and you'll be okay. And that's not patronizing. It's true.

You've got to do the motion, as I said, and since mediation is right around the corner you should probably just wait until it is over and then file the ex parte/OST.

I do this for a living (I'm not trying to sound haughty but it's true) and I'm a Certified Family Law Specialist in California and I've been a lawyer for 20 years. Two of my good friends are also Certified Family Law Specialists in my county and we talk all the time about cases and judges and how to do things. The point is, I'm not one of these participants who has a disclaimer saying my advice in not a legal opinion. No. My advice IS a legal opinion in California and I'll stake my reputation on it. I'm also admitted to practice in Washington State but I am careful about giving advice about Washington because I don't live or practice there (even though I am licensed in Washington and am an active member of the Washington State Bar Association [WBSA]).

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Thanks again for your advice cadillac59. You have been the most helpful of all that I have found on this site. Unforetunatly it looks like I will have to wait to see my children but your advice has really calmed me down. Maybe my wife will back of a little but then again maybe not. If she had a lawyer it would probably be easier to get through to her. I signed up for a court approved parenting class so that can't hurt and I have plenty of people to support my claims as a good father. Again thanks for your advice.

Thanks to stevetcg for his kind words [you'd be surprised what a thankless job this is, doing family law!]

When it comes to anything other than CA family law, I'm the first to say, "hey, I'm not sure, but this might be right, check it out first." Even if you asked me about CA landlord-tenant law I'd say the same thing... check it with someone who does that stuff. But at least with CA family law I can speak with confidence.

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Originally Posted by morgan duncan

Is there a way to do this even though the court has already set dates for the hearing?

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Hello m:

No. The hearing is the earliest that ANY testimony will be heard... You won't get an earlier hearing... And, I would NOT take her word for ANYTHING. In fact, you shouldn't even be CONTACTING her to hear her word. You can't even contact her through a third party. So even if there WAS something that she could do, you CAN'T ask her.

excon

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Originally Posted by excon

Hello m:

No. The hearing is the earliest that ANY testimony will be heard... You won't get an earlier hearing... And, I would NOT take her word for ANYTHING. In fact, you shouldn't even be CONTACTING her to hear her word. You can't even contact her through a third party. So even if there WAS something that she could do, you CAN'T ask her.

excon

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I definitely have not attempted to contact her at all. If she doesn't want to talk to me then I respect that. Her dad contacted me over a loan he made us. He suggested that if I would make the payment on the loan then maybe we wouldn't have to go to court. I'm not stupid. I am trying to be able to mediate all our issues outside of court because I don't think my wife realizes that things might not go her way in court either. It's better to come to a decision on our own. I might try to get a modification on the restraining order but the court probably won't. I have to exhaust every avenue available to be able to see my son. Witholding our son from me just isn't right!