My friend's girlfriend filed for sole physical and legal custody of their 6-month old daughter. They have a scheduled October 4th hearing. Now, out of the blue, she has filed for a restraining order claiming she "fears" him and "fears for the child"... I know this is because she's wants to win the custody case and is trying to create a bad image of him. My ex-wife did the same thing to me! Any ideas on what to do? His hearing for the restraining order is August 25th... and, he will be self-representing as he cannot afford legal assistance...

Restraining order??
Let's see what our friends from MassOutrage said:
"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.
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.

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 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 why 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 or not 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."

GV70! WOW!! That's some serious advice!! Awesome!! I appreciate you very much!! I'm amazed!!

Often you can not afford not to have an attorney. The amount of time you get to visit, how much child support you get to pay and more will be decided over this for some time

I posted a question a week or two ago regarding my friend and some of his "ex-girlfriend" issues. I've been attempting to assist him with his legal troubles involving his new baby. Currently, he and his ex-girlfriend are in the midst of a custody case. They have been to court once, with the judge giving "temporary orders" until "further order of the court" and "pending" an October 4, 2010 hearing. Well, in the meantime, the ex-girlfriend has stopped allowing him visits, it appears she has moved from her home. The home was for sale, now the "For Sale" sign is gone and he's left messages on the door, and the child was removed from her daycare and has not been there for nearly 2-weeks. He has contacted the police and filed a police report. He has not seen the child for nearly 6 weeks! His ex-girlfriend, on the otherhand, has been spotted where they attend the same church (this was 3 weeks ago) - and, when he approached her to ask her where she has been and where the baby is - she began to make a scene as though she was fearful and he was harassing her - and, she ultimately, asked security to walk her to her car... Then, the next day, she filed for the "Restraining Order"...

Last week, he and I went to the courthouse to file for an ex-parte and an Order to Show cause based on her not honoring his visits, removal from the daycare, and her overall disappearance. While there, we were told and given copies of the "Restraining Order" filing. We were told the request for the immediate restraining order was "denied" but there was a hearing scheduled for it (tomorrow, August 25)...

Now... He was never served by the ex-girlfriend - she has not contacted him, nor given notice. He does intend to show up based on discovering this while at the courthouse - but, what can be said to the Judge regarding him not being served nor notified? And, any ideas on how he should argue against this restraining order? We won't know until later today or tomorrow, if his request for the "ex-parte" will be granted... Need sooo much help!

As far as being served or not being served is concerned - the Court serves the papers, not the girlfriend, so your friend's issue is with the Court. He should check what address they have for him. Of course, he learned of the hearing without being served so the question pretty much is moot.

Ex parte means that a hearing can be held, an order issued, without notifying the other party - I've never seen this done unless it's an emergency situation.

His argument against the restraining order is that there is no reason for the restraining order, that he never threatened or hurt her or did whatever else she is alleging.

As far as visititation is concerned, he needs to go back to the original Court and ask that she be held in contempt. If the restraining order is granted he will need to go back to make arrangements to pick up and deliver the child without contact with the mother.

I have requested that your threads be combined - this is part of a continuing problem.

The court serves the papers in a Restraining Order matter? Hmmmmm... never heard of that!

As far as the "ex-parte" - it was filed by my friend... would you not consider not having any idea of the whereabouts of your child for SIX WEEKS an emergency??

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Originally Posted by MrPayne

The court serves the papers in a Restraining Order matter? Hmmmmm...never heard of that!?

As far as the "ex-parte" - it was filed by my friend...would you not consider not having any idea of the whereabouts of your child for SIX WEEKS an emergency???

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In my area where I actually work in the Court system, yes, the Court can and does serve the papers - this is ex parte so no service is required.

What I would or would not consider an emergency does not matter - it's what the Court considers an emergency that does matter. Please don't get defensive with me. You asked. I answered.

Yes an ex-parte was appropriate in this case, because the girlfriend disappeared with the child.

Summons for criminal or family court cases are generally the province of the court, not the plaintiff. But this could vary by location. I would suggest him pointing out to the court that he only found out about this hearing a couple of days previously and only because he had filed some other motions concerning the case (don't mention what they are unless asked). Say to the judge that he is mentioning only to explain that he had little time to prepare for the hearing and hope the court will bear that in mind.

Thank you, ScottGem. I always appreciate your wisdom and professional manner.

JudyKayTee: I apologize as I meant no disrespect nor was I attempting to get "defensive" with you. Unfortunately, in online discussions the reader cannot detect the tone or manner in which a question is being asked. I appreciate you and your assistance. Disrespect is definitely not on my personal agenda.

In this particular county, the court is not responsible for service. After contacting the court earlier today, I discovered here it is the duty of the opposing party to serve the other party or retain the service of a local sheriff or company which handles such matters for which you will pay a fee. Due to court budget cuts, they do not handle that in this area. They further told me that if he hadn't been "properly served"... he can mention that to the Judge and, more than likely, she will have to dismiss the case and the opposing party would have to initiate a new one and follow proper procedures. Him finding out simply because we happened to go to the courthouse is apparently not enough.

Same with the ex-parte. If it is ultimately granted, she must be served. Telephone service is also acceptable here in this county for ex-parte hearings.

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Originally Posted by MrPayne

They further told me that if he hadn't been "properly served"...he can mention that to the Judge and, more than likely, she will have to dismiss the case and the opposing party would have to initiate a new one and follow proper procedures.

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Hmm, that puts a different light on my suggestion. In that case, I would suggest that as soon as court is in session, he explain to the judge, something to this effect:

Your honor, I just found out about this hearing a couple of days ago as the result of filing a different motion in this case. I have been given to understand that, if service is not properly completed, it might be grounds for dismissal of complaint. If I have been informed correctly, then I am requesting an immediate dismissal as I believe this request is simply a ploy in keeping me from being able to visit my child.

Awesome! He's in tomorrow morning at 8:30... I'll give you an update! GEM: thanks, man!

Quick. Hearing was done in a matter of minutes. Ex-girlfriend was a "no-show" - Judge threw it out. It's the same Judge handling the custody case. How do you think this will begin to affect her view of the girlfriend?

This is the mistake many people make. Judges will generally side with people who are polite, deferential, honest and have done their homework.

And I will add that showing temper and attitude and wasting the Court's time can harm a case. This falls into the "wasting time" category.