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I have a restraining order against my husband of 15 years. I also filed for divorce in November of last year. We have been in touch and are considering a reconciliation. My restraining order was based on threats he had made with regard to me leaving him. I know now that his threats were just words, and I should not have gone as far as I did. How now do I rescind the records in CA?
You already have by being in touch with him.
A restraining order means that neither party can have any contact whatsoever with the other. You have been in touch and considering reconciliation so the order is no good.
But... there may be repercussions in having contact while a restraining order is in place. Someone is going to pay here and it may be you.
Out of the frying pan into the fire maybe a good saying here. How do you know it won't happen again? His threats were just words you say?
Yes Tickle is right
Words are just words and an abuser doesn't comprehend that words hurt and they will keep up the badgering because they just don't get that words are not just words.
Also as far as repercussions if you need to get another restraining order the police may be less likely to take you seriously.
Accidentally got this through twice
You have to ask the court to vacate the restraining order.
Being in contact with your husband doesn't put you in harm's way but him. He violates it even if you consent to speak with him so he needs to be careful.
You can file a motion and ask that the court terminate the TRO but I've heard of cases where the judge denied such a request. I personally think this is rare, but it can happen.
Yes, start with the office where you filed the order, you will have to request it to be withdrawm in writing and in person.
cadillac59 disagrees: No. TRO's are usually not mutual.. the person's appears to only restrain husband,'
In my state and many others if the one who took the restraining order even gets a message to the one the order is to through a third party the TRO is void. The person that took out the TRO is not permitted any more than the person that it is against is allowed to contact them.
I do agree it is probably best all the way around that you do go through the court to get it resolved but technically the TRO was broke when you started communicating with him
No, technically the TRO was not violated when the OP started communicating with husband. TRO's are not mutual unless specifically stated to be so and this OP did not say that husband had a TRO against her. So it operates in his direction, not hers. That's the way it works.Quote:
Originally Posted by N0help4u
Also, the OP stated she was in California, where I practice, and I have heard this very question asked of judges while sitting in court and the judges all have given the very same answer to people that I gave. With all due respect, I do this for a living and I know what I am talking about.
Then my county must be doing something wrong then!
Once the person who takes out a TRO starts communicating even through a third party the courts and police will not do a thing.t
The problem they have here is that women take out TRO's and they only want to enforce them when they feel like it.
They will call and harass the guy constantly that they have the restraining order against.
They will let the guy move back in and then expect the police to come rescue them because they have a restraining order. Then they again take the guy back.
It might be a one way thing in your state but it doesn't work that way here.
I have never heard of it being a one way thing before.
It's always a one way thing unless the court specifically makes it mutual. The protected party is not prohibited from contacting the restrained party. No. Only the restrained party is enjoined from contacting the protected party. Now if the protected party makes contact, and I know that that frequently occurs, the restrained party may be able to defend on a criminal charge of having violated the order by saying the protected party on his or her own came too close on made contact. But the TRO is never canceled because of this or voided. No, it's a court order and it does not just go away. The court has to change the order or it has to expire on its own terms.Quote:
Originally Posted by N0help4u
If the protected party abuses or harasses the restrained party this may be a basis for the restrained party to get a TRO himself, but he'd have to go into court to do so.
In NYS - and I know OP is talking about California - the restraining orders are joint/mutual whether so requested. ANY contact and someone is in violation. Judges got sick of the "there's a restraining order on me but she called me and I called her back and here I am, in jail" game.
I obviously cannot address California.
Have to spread the rep.
That is the way it is here too. They got sick of girls getting an order in anger and then letting the guy back in the house. Then they get into a fight again or she just gets plain tired of him and she wants it enforced. The Judges said NO if you contact him then the order is voided. It protects the guy from these crazy girls that think they can go ballistic and freak out on the guy simply because they have an order weeks after they took the guy back.
With it being a one way thing, by the time the guy would realize he needs to get an order too it would be too late cause she already has him in jail for violating the TRO when in fact she was the one that contacted him. The Judges are tired of wasting their times on writing them up only to rescind them at all these girls whims.
A while ago (the early 1990's) it use to be fairly common in California for people to go into court on a TRO and agree to it being mutual. Well, after a while the legislature didn't like that because women's rights groups often complained that women, who were true victims of DV, were being coerced in court into agreeing to mutual TRO's when they hadn't done anything to the other party (i.e. the abuser). In other words, women (the usual but not exclusive victims of DV) were agreeing to these mutual orders out of convenience and because their abusers (or the abuser's lawyers) were twisting their arms. It was thought that the victim was being further victimized by this.
So, in 1993 the legislature enacted section 6305 of our Family Code which provides: "The court may not issue a mutual order enjoining parties from specific acts of abuse described in Section 6320 (a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense."
So, you see we have a specific law that says the court cannot make mutual restraining orders without making certain specific and detailed findings of fact, those facts being that the victim was essentially an abuser herself. Most of the time courts never make such findins because it's simply not possible. Hence, our TRO's are almost never mutual, and almost always operate only in one direction, just like I said.
I'm not unsympathetic with the arguments abusers often make ("she called ME") and it would be good to have specific legislation addressing those situations but as it stands now, our law on the subject, and the reasons for it, is how I described.
Thank you both for your assistance here. Within our TRO there is a stipulation that we may contact each other with regards to the pending Divorce paperwork and filing. So I don't believe I have violated the restraining order, it is not a TRO, we've already gone to court for that and it became a 2 year restraining order. Since that time, in discussing our pending Divorce, we decided we may reconcile instead of going through with the divorce even though he's been served his portion of the paperwork. He's not filed his response, and I've not filed my financial documentation yet.
I do understand why they wouldn't want to release it because of the threats, that is also something we're working on. He's in anger management and we've decided to go to marriage counseling in addition.. I'm not trying to make excuses, I do realize that he may not ever change. But as long as he makes a strong effort for a long period (at least a year of counseling and living separately) I feel we may be able to work this out.
I'll go to the local court here and ask for dismissal documentation. I appreciate your help here!:o
Quote:
Originally Posted by cadillac59
What I fail to see with this is he is an abuser. She wants nothing to do with him.
So why does she have the need to want it to be a one way thing? Once she contacts him then he is caught up into falling victim to her possibly claiming that he did something to violate the order when he was not the one to contact her. A one way TRO sets guys up for becoming a victim when they may have been replying innocently because SHE contacted him.
If it is a case of children involved we have other ways around that that still does not involve the parties contacting each other.
Once she contacts him then he is caught up into falling victim to her possibly claiming that he did something to violate the order when he was not the one to contact her.Quote:
Originally Posted by N0help4u
So what? You know what my answer to that is? It's maybe he should have thought about that BEFORE he committed domestic violence! If he "falls victim" to anything then let him defend himself on a charge of violating the order by arguing she contacted him when and if the issue arises. That's the attitude the California courts take. Why all this sympathy for a perpetrator of domestic violence? DV is a CRIME! And why make the victim be a further victim by subjecting her to a restraining order when she didn't do anything? Place her under a restraining order and now she is subject to the firearms relinquishment requirement, her name goes into the national law enforcement database that tracks restraining orders throughout the entire country (in California it's called CLETS-- the California Law Enforecement Telecommunications System) and once that happens it's there forever. That doesn't make any sense.
A one way TRO sets guys up for becoming a victim when they may have been replying innocently because SHE contacted him.
Oh boo hoo! Cry me a river.
So she contacts him and says she still cares, she wants to work things out, she entices him to believe that she wants to drop the order and he is all for it so he doesn't hang up on her. So they get back together and then she realizes that she doesn't want to be with him after a week, a month, etc... then she files a false report and he is arrested.
I have seen so many girls lie in the first place to get an order against the guy and play this game.
Most recent, my neighbor, 19 yr old boy, his girlfriend claimed he beat her up on the path and stole her food stamp card. She got a TRO and started seeing his best friend. Then she dumped him and went back to my neighbor. Then she claimed he threatened her life and wanted the TRO to back her up but the police said they would investigate it.
She contacted him. He fell for it and now he has to go through all this over her lies.
I guess I just know way too many mentally deranged girls because I know a lot of guys this happens to.
So again I ask why does the victim WANT to contact the guy anyway if he has abused her?
[I]So again I ask why does the victim WANT to contact the guy anyway if he has abused her?[/I]Quote:
Originally Posted by N0help4u
Who knows? Who cares? What difference does it make?
If someone commits an act of DV the person deserves to have a restraining order against him. Simple as that. The victim doesn't need to have one against her when that person didn't do anything to deserve it. To impose that kind of rule on a victim is insane. It makes no sense whatsoever and serves to intimidate victims and dissuade them from doing what they should do-- taking action that might save their lives.
If someone protected under a restraining order lies or makes a false report about a violation, then deal with that as it happens. That there is a risk that that might occur is no reason to make restraining orders mutual. They shouldn't be mutual unless both parties acted primarily as aggressors and not in self-defense.
You are missing my point
Many guys DIDN'T commit an act of DV
Many girls just claim that because it is the easy way to get them out of their house than standing up for themselves and kicking them out. Then they want to contact them and work things out.
Why if they want a TRO against the guy would they want to keep contacting them?? If they want an abusive guy out of their life why would they want the stipulation of it being a one way thing?
They want it both ways because they WANT contact with the guy they ACCUSED of abuse but they want the TRO to back them up when their FEELINGS for him change again.
You are missing my pointQuote:
Originally Posted by N0help4u
No. The point is you don't have a point.
[/B][/B][many guys DIDN'T commit an act of DV many girls just claim that because it is the easy way to get them out of their house than standing up for themselves and kicking them out. Then they want to contact them and work things out. [/B]
If a guy didn't commit an act of DV then he shouldn't have a restraining order against him. That's what we have courts for, and trials, to make findings of fact (to find out if the guy committed DV) and then to apply the law.
Why if they want a TRO against the guy would they want to keep contacting them????
Who said they wanted to keep contacting the guy? You might be talking about 1 in 1000 cases, who knows? But what you are saying is not universally true, or even true in the majority of cases.
If they want an abusive guy out of their life why would they want the stipulation of it being a one way thing?
Well, let's see. Maybe they don't want to give up their guns (they like to hunt, feel they need a gun for self-defense, for example)? Maybe they just don't want their names in a criminal law enforcement data base that covers the entire USA? There are many possible reasons. There are several negative consequences to having a DV restraining order against you. I would never allow a client of mine to agree to a restraining order being mutual. If I had to get a restraining order against someone else, I surely would not want it to be mutual, would you when you hadn't done anything to have one against you?
They want it both ways because they WANT contact with the guy they ACCUSED of abuse but they want the TRO to back them up when their FEELINGS for him change again.[/I][/I][/I][/B]
Again, this is not universally true. You might be thinking of a few cases you've heard of and are generalizing about the larger population of victims of DV. The people I've represented in DV cases never wanted any contact with the perpetrator after the restraining order went into effect.
Yeah I know the law should cover the multitude instead of being written to protect all the way around situations.
I am glad Pa, New York and some other states see it otherwise.
I'm not convinced that the law is that different in other states. You mentioned what happens in PA, but what is that based on? Your personal observations, what someone told you down the street or at the hair salon? One case you heard of where the police, in their discretion, chose not to investigate a restraining order violation? That doesn't prove anything. That doesn't establish what the law is.Quote:
Originally Posted by N0help4u
I cited the actual law in California--chapter and verse-- and gave the reasons for it and examples of why it makes sense. You say PA is different. Fine. Cite the relevant PA statute or case law. I've love to read it.
My DA teachers in paralegal school.
My local police and the captain and detective.
Constables
Children Protective Service workers and Judges (called CYF here).
Teachers, police, and CPS workers are not legal authority. Laws are written in books or in published cases and put into place by legislatures or courts. That's legal authority. If you can't cite legal authority for your position then it's just rumor, speculation, guessing, the current urban legend, not law. In other words it doesn't mean anything. It could be a half-truth or just patently false.Quote:
Originally Posted by N0help4u
There are a lot of people living rumors, speculation and guessing through what the Judge says then.
I do have to agree with what you are saying to a degree because many of the Judges rulings are based on what mood they happen to be in. I guess if what you are saying is right then these Judges that hand out these rulings are not following the law.
I have been saying that I don't see how they can rule a lot of things they do legally but this was one that made sense to me.
So I guess it is one more 'illegal' rulings by Judges that I can add to my ever growing list.
Here I trusted my district attorney family law teacher to have his facts right.
There is statutory law on the subject of DV in PA. I can guarantee you that. But it is possible you have a DV prevention act that is silent on the issue of mutual orders; and it's also very possible that you have judges who, in applying the law, feel they are authorized to make mutual orders. Yes, very possibly. Some judges may feel this is good public policy and, until the legislature or a higher court tells them they cannot do this anymore, they are entitled to continue and probably will continue doing this. But one judge doesn't make the law either --not in a general sense, not beyond the one case he is involved in. So, judge #1 may make mutual orders in some cases, but maybe not all. His friend the judge in the next county may never make mutual ordes, and his friend in the department next to him may make all of his restraining orders mutual. So you see, if this is what is going on it would be incorrect to say that making mutual restraining orders is "the law" in PA. Because in this hypothethical, for example, it isn't-- the law is just unclear. It's a variable.Quote:
Originally Posted by N0help4u
This may well be what is going on in your jurisdiction.
[QUOTE=cadillac59;1549495]
[/B][/B][many guys DIDN'T commit an act of DV many girls just claim that because it is the easy way to get them out of their house than standing up for themselves and kicking them out. Then they want to contact them and work things out. [/B]
If a guy didn't commit an act of DV then he shouldn't have a restraining order against him. That's what we have courts for, and trials, to make findings of fact (to find out if the guy committed DV) and then to apply the law.
[QUOTE]
Ok, here is where Im going to take issue. It is entirely possible for someone to get a restraining order in California with no domestic violence having taken place. Its also possible in California that when proven nothing had occurred that the restraining order can NOT be removed.
This is not a guess.. nor rumor. I know because I got the tshirt. My ex got one on me when nothing had occurred because her and her lawyer cooked it up. When I had my day in court the judge just figured it was a good day to write one. What I was told at the time was that it was because of the " what if " factor. And the courts could be held liable if they hadn't approved it. It was later proven to be a total fabrication.. but California law being what it is made it so it couldn't be removed based upon evidence. Yes.. a California law. So I can see how manipulative a system and some women are with the system. As it was I did manage to have all the teeth taken out of it by the time I got through with it and made the " fact " that it was a falsification go into court record. But the original restraining order had to go until it expired 2 years later. Just unreal. BTW.. no arrest no police report and no wittnesses even though her calim was that it occurred in front of my children.. insanity plus 1. It was at the time we were going through a custody evaluation. Pretty cute on her lawyers part.
As a side note I do not condone domestic violence in any way and realize that it does happen and the courts need to be there to protect people. Any man that raises a hand to a woman other then to offer help is in need of serious help himself.
[QUOTE=califdadof3;1550317][QUOTE=cadillac59;1549495]
[/B][/B][many guys DIDN'T commit an act of DV many girls just claim that because it is the easy way to get them out of their house than standing up for themselves and kicking them out. Then they want to contact them and work things out. [/B]
If a guy didn't commit an act of DV then he shouldn't have a restraining order against him. That's what we have courts for, and trials, to make findings of fact (to find out if the guy committed DV) and then to apply the law.
I don't say that restraining orders are never improperly granted, or that people never lie to get them. I'm sure that happens, but when it does it's not unique to California. And it's not an indictment of the entire system under which restraining orders are issued any more than a wrongful conviction is an indictment of the entire judicial system. It means the system is not perfect. That's all.Quote:
Ok, here is where Im going to take issue. It is entirely possible for someone to get a restraining order in California with no domestic violence having taken place. Its also possible in California that when proven nothing had occurred that the restraining order can NOT be removed.
This is not a guess.. nor rumor. I know because I got the tshirt. My ex got one on me when nothing had occurred because her and her lawyer cooked it up. When I had my day in court the judge just figured it was a good day to write one. What I was told at the time was that it was because of the " what if " factor. And the courts could be held liable if they hadn't approved it. It was later proven to be a total fabrication.. but California law being what it is made it so it couldn't be removed based upon evidence. Yes.. a California law. So I can see how manipulative a system and some women are with the system. As it was I did manage to have all the teeth taken out of it by the time I got through with it and made the " fact " that it was a falsification go into court record. But the original restraining order had to go until it expired 2 years later. Just unreal. BTW.. no arrest no police report and no wittnesses even though her calim was that it occurred in front of my children.. insanity plus 1. It was at the time we were going through a custody evaluation. Pretty cute on her lawyers part.
As a side note I do not condone domestic violence in any way and realize that it does happen and the courts need to be there to protect people. Any man that raises a hand to a woman other then to offer help is in need of serious help himself.
I've represented people at trials on restraining orders where the orders were denied, after trial, for insufficient evidence. That's not uncommon. I've seen TROs denied at the ex parte stage as well for insufficient evidence. So, I'm not sure I understand what your complaint is about domestic violence restraining orders in California.
If an injustice is done in any particular case, appeals are available. That's what appellate courts are for.
Im putting this out there because some of you might find it an interesting read.
http://www.ph.ucla.edu/class/chs/chs...ies/vites1.pdf
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