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    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
    Family Law Expert

    Aug 18, 2010, 09:02 PM
    Restraining orders

    The motives for this law are legion. First, it makes the state a bunch of money, by allowing it to leverage massive Federal grants. It makes feminist victim groups a lot of money by providing millions in state and federal grants to stop 'domestic violence.' It makes a lawyers and court personnel a lot money as they administer the Godzilla-sized system they have built to deal with these orders.

    The worst feature of the restraining order law is that it allows a person to go to court and get an order, without the other person present.

    Unfortunately, restraining orders are often issued when they shouldn't be, but courts believe it is better to provide more protection than is necessary than to deny someone the protection they need.

    If there was ever a time to get a lawyer, this is it. At any cost. Get one who will fight like your entire future depends on it, because it does. If you lose, you may never see your children again as long as you live.

    You must comply with the restraining order at all times. Usually a temporary restraining order is called an "ex parte" order which has been granted in your absence - the judge will rule in favor of its enforcement but also set a date for a second hearing at which you appear to defend your case.

    You need to be fighting a restraining order for yourself AND your kids.
    You think that sounds obvious? I'm always surprised at the number of guys who think they're only fighting a restraining order for their children's sake. They forget some of the other elements that should be the driving force behind their crusade.

    For one: in most states, the order becomes part of your criminal history and is searchable by employers. So if you attend any interviews whilst fighting a restraining order, any background checks will reveal this black mark on your record – and they won't know the details of why it's a phony allegation. It's highly likely that employers will be put off by finding this against your name, and there is the very real possibility that you won't get offered positions you'd have otherwise been hired for.

    It is also flagged as a warning to customs officials. Imagine having to explain and defend yourself yet again on a business trip or whenever you get a firearms license check. Think about the amount of time and frustration you may have to go through when extra baggage checks are needed, and searches of your person are conducted – all because of that phony restraining order.

    The first step you must take to defend yourself against this deadly restraining order is to get a secret application and affidavit that the plaintiff filed at the ex parte hearing. The court will not tell you that these documents exist, so you must go to the clerk in the court where your order was issued, and ask for two things: the "application" for the restraining order and the "affidavit" that the complainant filled out.

    The application will have statements on it as to why the person wanted the order. An 'affidavit' is a statement in writing, made under oath, of the facts supporting the application. Usually, they are both full of perjury, exaggeration, and down right lies.

    When you go to the court to get them, give the clerk the "docket number", which is the case number on your order, and ask for the two documents. The clerk at the court may give you grief, but you are entitled to those documents. They are a public record, and even if they were not, you are a party to the case, so you should get them on that ground. You will have to pay a stinking 50 cent fee per page, but it will be well worth it.

    The first critical strategy to use in every case, without exception, is to see if there are indeed lies in the papers which you got from the court. Even if not, you have the other strategies set forth below. However, this is just about the best one, because it exposes the tendency of the complaining witness to not tell the truth under oath. That bothers judges a great deal.
    Neighbors, friends, co-workers can be brought in as witnesses, to state that you were in a place far away, not abusing. Or, if the neighbor was standing there, witnessing the complainant beating you up, while you stood silently and didn't lift a hand, that can also turn it around.

    Show How the Affidavit Fails to Meet the Legal Standard
    The argument about the legal standard is rarely even made by lawyers, even though it is absolutely critical. The judge has be shown that you did not place the plaintiff in fear of imminent, serious, physical harm. The plaintiff has to prove each of these requirements - imminent, serious, and physical - and you should try to disprove each, even though the burden of proof is on the plaintiff.

    Be Prepared for Some New Lies
    The most important strategies to use in opposing an order are the ones described above. At the return hearing, you will be allowed to cross examine the plaintiff about all these things. However, there is another critical strategy or tool for you to use to undermine the credibility of the plaintiff. That is to show the judge that there is a plausible motive, other than fear of harm, that has motivated the person to seek an order.
    This is a list of possible ulterior motives for which the 'victim' may have sought a restraining order against you:

    1. To gain an advantage in a divorce; (Some divorce lawyers routinely advise getting one.)
    2. To quickly get custody of your children without a hearing;
    3. To keep you from your children;
    4. To stop you from modifying custody after your child expresses a desire to live with you.
    5. To quickly put you out of the house without an eviction or a Probate Court hearing;
    6. To allow the complainant to get a new boy/girlfriend into the picture, and you out;
    7. To get vengeance;
    8. To control or manipulate you, or get leverage in some way;
    9. The 'victim' got sucked in by a victim-witness advocate who preyed on weakness;
    10. To put you in jail;
    11. To enjoy watching you suffer.
    12. To get $$$$$$ and help from DSS or a victim group.

    The classic one used by thousands is Number 1, to get an order to gain an advantage in a divorce. What can you do? You file the divorce. You be the plaintiff. Then, when the person tries to get an order, you can at least point out that it may be in retaliation. If you have not filed first, there is almost no hope.
    In order to successfully pursue this strategy, You must figure out which of these motives are behind the push for a restraining order against you. Then you must be able to bring some document or witness that will prove pretty strongly that the motive you allege is the REAL reason why the person is seeking the order.
    Comply with all conditions of the temporary restraining order. This may mean that you will need to surrender any rifles, shotguns or handguns to the police until the matter has been resolved.

    Fight the restraining order by filing an answer to the TRO. This is your opportunity to tell your side of the story, and to object to the reasons the order was originally issued. Have an attorney review your answer before you file it to determine whether your statement is in your best interests.

    Tell your side of the story at the mandatory hearing, where the temporary restraining order will be reviewed by the court and a decision will be made whether to grant a PRO. Remember to remain calm

    Resist the temptation to discuss the restraining order with the issuing party outside of the court. The order was issued for a purpose and any attempt to ignore or circumvent a TRO or PRO may result in additional criminal charges, such as contempt of court.

    I want to say THANK YOU to Ron Lasorsa and Gregory A. Hession,JD
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
    Computer Expert and Renaissance Man

    Aug 19, 2010, 05:09 AM

    Great info!
    NeedKarma's Avatar
    NeedKarma Posts: 10,635, Reputation: 1706
    Uber Member

    Aug 19, 2010, 05:29 AM
    Just a note: the information is only for residents of the United States.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
    Family Law Expert

    Aug 19, 2010, 12:07 PM
    Quote Originally Posted by NeedKarma View Post
    Just a note: the information is only for residents of the United States.
    Restraining order is called a peace bond or an emergency intervention order in Canada.
    In Manitoba it is called PROTECTION ORDER.
    Her Majesty, by and with the advice and consent of the Legislative Assemblies of the Provinces enacted different acts.
    Thus all subjects of Her Majesty are treated in different ways-one may get protection order,other may get emergency intervention order .

    ... but the procedure is the same as it is in the USA.
    asking's Avatar
    asking Posts: 2,673, Reputation: 660
    Ultra Member

    Aug 20, 2010, 11:28 PM

    Shouldn't there be some information here for women who are being stalked or assaulted and would like to get a restraining order? Often these women are not married, have no children, and just want to get away safely. The tone of this sticky seems pretty hostile. Can we have something more neutral?

    I also think it's unnecessarily provocative to put domestic violence in quotes. You have only to read posts like those of Just Looking and Immortelle to know it's real enough and that there's a need for restraining orders.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
    Family Law Expert

    Aug 21, 2010, 01:19 AM

    "It brought to mind the title of the George Gershwin song "They All Laughed" when a Santa Fe, N.M., family court judge granted a temporary restraining order against "Late Show" host David Letterman to protect a woman he had never met, never heard of, and lived 2,000 miles away from.

    Colleen Nestler claimed that Letterman had caused her "mental cruelty" and "sleep deprivation" for over a decade by using code words and gestures during his network television broadcasts.

    The New Mexico statute appears to limit domestic violence to "any incident by a household member," and Letterman, who lives in Connecticut and works in New York, had never been in Nestler's household. But New Mexico law defines household member to include "a person with whom the petitioner has had a continuing personal relationship," and Nestler's charge that Letterman's broadcast of television messages for 11 years qualified as a "continuing" relationship and thereby turned him into a household member.

    The family court judge who issued the order, Daniel Sanchez, might have been predisposed to believe any allegation presented to him by a complaining woman even though she had no evidence. His own biography lists him as chairman of the Northern New Mexico Domestic Violence Task Force."
    Phyllis Schlafly
    Let's imagine Mr. Letterman has a gun.

    From the time the protection order is imposed until it is cleared from all databases it is a violation of Federal
    Law 18 U.S.C. § 922(g)(8), a.k.a. the Lautenberg Amendment, to purchase, acquire, or be in possession of
    Firearms, ammunition, or other dangerous weapons, e.g. swords, grenades, explosives, etc.This is a federal
    Felony with a mandatory minimum of 5 years in prison if convicted.

    Thus Mr Letterman must be jailed immediately for five years or more...
    Does it make sense??
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
    Family Law Expert

    Aug 21, 2010, 01:20 AM
    Quote Originally Posted by asking View Post
    Shouldn't there be some information here for women who are being stalked or assaulted and would like to get a restraining order?
    They can get one with and without reason;)
    Quote Originally Posted by asking View Post
    Can we have something more neutral?
    In my view-no,because the law is gender biased.
    I can remember the battle of Woods against Ca Health & Safety Codes Section 124250,defining domestic violence as something only experienced by women, the statutes exclude male victims from receiving state-funded domestic violence services.In 2007, Sacramento Superior Court Judge Lloyd Connelly dismissed the case, ruling that men are not entitled to equal protection regarding domestic violence .
    Quote Originally Posted by asking View Post
    Shouldn't there be some information here for women who are being stalked or assaulted
    May be... but in Criminal law section
    Quote Originally Posted by asking View Post
    there's a need for restraining orders.
    Feminist dogma is that the law should assume men are batterers and women are victims.
    Family court judges issue 2 million temporary restraining orders every year and half do not include any allegation of violence but rely on vague complaints made without evidence.
    The demand end of the economic chain is the fact that women know (and their lawyers advise them) that making allegations of domestic violence (even without proof or evidence) is the fastest and cheapest way to win child custody plus generous financial support. The financial incentives to lie or exaggerate are powerful.
    Due process violations in the issuing of temporary restraining orders include lack of notice, no presumption of innocence, denial of poor defendants to free counsel while women are given taxpayer-funded support, denial of the right to take depositions, lack of evidentiary hearings, improper standard of proof, no need to be found guilty beyond a reasonable doubt, denial of the right to confront accusers, and denial of trial by jury.
    Assault and battery are already crimes in every state without any need of the Violence Against Women Act. Temporary restraining orders empower activist family court judges to criminalize a vast range of otherwise legal behavior (usually a father's contact with his own children and entry into his own home), which are crimes only for the recipient of the order, who can then be arrested and jailed without trial for doing what no statute prohibits and what anyone else may lawfully do.
    asking's Avatar
    asking Posts: 2,673, Reputation: 660
    Ultra Member

    Aug 21, 2010, 09:06 AM
    Quote Originally Posted by GV70 View Post
    Family court judges issue 2 million temporary restraining orders every year and half do not include any allegation of violence but rely on vague complaints made without evidence.
    This isn't feminist dogma; this hard won experience. It's your sticky that is masculinist dogma.

    You just told me that a million women a year ask for a restraining order WITH evidence of violence--which, by the way, is incredibly hard to establish, since violent husbands and boyfriends rarely commit acts of violence in front of third parties--and there's nothing here in this thread to help any of those women.

    I think you should at least retitle this sticky "If you have a restraining order against you" so women who have been assaulted and stalked don't have to come here and read this tirade against women, looking for some crumb of information that will help them. If they are looking for help, reading this is not good for their mental health. They'll feel like they've lost before they even begin. I certainly hope that's not your intent in posting this invective as "legal advice."

    You should know that, like you, I have my own bias and I didn't learn it in some college course or from my drinking buddies. I was hit by my husband, he hurt our kids, but I never reported it, never got a restraining order, never dared mention it during the divorce for fear of being told I was an "alienating parent," and all that other crap that frothing masculinists put out there. I couldn't prove he hit me and nobody cares about the daily emotional abuse, including constant criticism and deliberately humiliating me in front of others, with outrageous lies, hurting my kids when I stood up to him, etc.

    One night during our "marriage," my husband woke me up in the middle of the night and made bizarre accusations. (He used to get angry at me at 2 am because he dreamed I was unfaithful.) When I fled the room, he followed me everywhere in the house and eventually grabbed my arm, twisted it and broke it. That's just one example. I won't bore you with the rest. How am I going to prove he broke my arm? Do you think there were witnesses at home at 3 am? Do you think he's going to tell any one that he did, for the record? Think again. He was a university professor. Nobody's going to think he would do that because they think professionals are "nice" people who don't do break their wives' arms. I would have been one more of your statistics of allegations without evidence.

    Both of my sisters ended up with men who were violent. One of them used to come home late and beat her in the face with a wire coat hanger while she was asleep. Of course, she'd wake up... That same guy broke his son's arm, threw stuff at his kids and pets. High level executive, never had a restraining order against him, never got reported. This stuff is rampant. And no, our own father was not abusive and we didn't seek these guys out. There are just so many of them out there...

    I wish I HAD called the police and got a restraining order. So don't tell me that restraining orders are ALL a way of taking away custody and tormenting poor innocent men. I wish I had a paper trail just to exert some leverage with him, as he's never left me alone. He still harasses me, 9 years after our divorce. I just want him to leave me alone and he won't.

    Your sticky is not "information" so much as bald rhetoric and badly needs a balancing sticky for those million or two women out there who need some information too.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
    Family Law Expert

    Aug 21, 2010, 12:13 PM

    Quote Originally Posted by asking View Post
    This isn't feminist dogma; this hard won experience… I was hit by my husband…Both of my sisters ended up with men who were violent.
    Lucky you….The last remembered “domestic violence”case in my family was in 1347 when one of my great grand…mothers –Irene hit my great grand…father John trying to urge him to make a decision. I wish it never happened because there were many consequences but it is another question.

    Quote Originally Posted by asking View Post
    You just told me that a million women a year ask for a restraining order WITH evidence of violence.
    You are mistaken. I said that a half of the orders have some/many times unproven/ allegations.
    Quote Originally Posted by asking View Post
    I think you should at least retitle this sticky… Your sticky is not "information" so much as bald rhetoric
    The sticky IS a legal advice and it is your problem if you think it is bald rhetoric only.
    Feel free to write a new one.;)
    Quote Originally Posted by asking View Post
    I didn't learn it in some college course or from my drinking buddies.
    No comment.I do not have intentions to fall low as your level.

    Finally-it is a LEGAL board and the goal of this sticky is fighting restraining orders.I have never said legal is equal to moral and fair. It is legal.
    If I am asked," I"ve just killed someone.What to do?" I will answer,"Burn the body and hide the weapon" but I would not explain to the killer what kind of feelings may the relatives of the victim have and so on.Probably it is not"correct line of thinking" but it IS legal thinking.

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