Restraining Order (After the Fact)

[f1tzg3r4ld]

My question involves restraining orders in the State of: California

Hello,
First off thank you to the volunteers that work this site. I wish I would have found this a long time ago. I will be short and to the point.

1. A restraining order was granted by the judge in my county overseeing my child custody case.
2. The restraining order was granted based on the fact that my sons mother said that I had hit her 1 month 2 weeks earlier. The cops were not called and she never filed a report because it was a flat out lie. I told the judge and she still chose to grant it.
3. I continued to pursue my custody case. I took drug testing and was seeing my son under supervision at the cost of $37.50 an hour.
4. Nearing the end of the custody case the judge began to look at the mother and said that i could have her drug tested as well now. She called me and said she was ready to talk and didn't want to go to court anymore I agreed because I too was tired of going to court. The judge ordered mediation. I got my son 3 days a week from 3-7 and 1 day from 3, over nite to 3 the next day. I bet you can imagine how happy I was.
5. Since then she always comes over and comes into my house when I have my son. She also has asked me over to her house. I have my son most of the time.

Is my sons mothers statement considered evidence?
Why did the judge grant this order based on what was said?
What grounds would I have to have this order removed?
And if you have any other information I would appreciate it .

Thank You Again!

[Mr. Knowitall]

What statement are you talking about? Her statement that she's tired of court?

If you had a hearing where you testified, your ex-testified, and the judge granted a restraining order, it is reasonable to infer that the judge found her testimony to be more credible than yours. If you want to terminate the restraining order and you have a valid basis to do so, petition to terminate the order. It would be sensible for you to work with a lawyer.

[mamabear2102003]

If she has a restraining order, she is violating it by being at his house all the time, isn't she? If you want someone to stay away from you, going to them would seem to me to negate the order?

[f1tzg3r4ld]

Her statement that I had hit her. That is the only thing that was said or brought up. This was a false accusation that is why I am not letting it go. Sure I could wait until it expires but now I can't hunt for the next three years.

I feel the judge made a bias decision for what reason I don't know. I am not in any trouble with the law. I know how to file the documents I just don't know what basis I would have. Would I have a chance doing it on my own?

In my case because we have the mediation agreement and can have brief contact to exchange the child. But she takes it too far. I don't have the heart to keep her from seeing him mainly because she has been so good about letting me see him. Not to mention he really like's seeing both of us at the same time.

[f1tzg3r4ld]

Ok as to the basis for having the restraining order dismissed will what I have found help me. I took down what I thought was relevant. Some of it is tricky wording but I think I get it. There is no way for me to be able to afford a lawyer so any advice would be a great service to me. I am hoping someone can point me in the right direction. I am also going to be looking at rules of procedure. Also is there a time limit on how long I have to appeal and have it removed from my record?

CALIFORNIA EVIDENCE CODE

DIVISION 5. BURDEN OF PROOF; BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS AND INFERENCES

CHAPTER 1. BURDEN OF PROOF

Article 1. General
SEC 500. Except as otherwise provided by law, a party has the burden of
proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that he is asserting.

Article 2. Burden of Proof on Specific Issues

Section 520. The party claiming that a person is guilty of crime or
wrongdoing has the burden of proof on that issue.

CHAPTER 2. BURDEN OF PRODUCING EVIDENCE

Section 550. (a) The burden of producing evidence as to a particular fact
is on the party against whom a finding on that fact would be required
in the absence of further evidence.
(b) The burden of producing evidence as to a particular fact is
initially on the party with the burden of proof as to that fact.

CHAPTER 3. PRESUMPTIONS AND INFERENCES

Article 1. General

Section 605. A presumption affecting the burden of proof is a presumption
established to implement some public policy other than to facilitate
the determination of the particular action in which the presumption
is applied, such as the policy in favor of establishment of a parent
and child relationship, the validity of marriage, the stability of
titles to property, or the security of those who entrust themselves
or their property to the administration of others.

Section 606. The effect of a presumption affecting the burden of proof is
to impose upon the party against whom it operates the burden of proof
as to the nonexistence of the presumed fact.

Section 607. When a presumption affecting the burden of proof operates
in a criminal action to establish presumptively any fact that is
essential to the defendant's guilt, the presumption operates only if
the facts that give rise to the presumption have been found or
otherwise established beyond a reasonable doubt and, in such case,
the defendant need only raise a reasonable doubt as to the existence
of the presumed fact.

[aardvarc]

If she has a restraining order, she is violating it by being at his house all the time, isn't she? If you want someone to stay away from you, going to them would seem to me to negate the order?

Typically restraining orders are ONE sided - the respondent is ordered to stay away from the petitioner. The petitioner isn't ordered to do or not do anything, and thus isn't impacted by the order.

If the OP can show that her behavior indicates that she DOES want contact (ie she isn't afraid, which is the basis of the order), it can be GROUNDS that the OP could use to go back before the court and argue to have the order dropped. It doesn't automatically negate the order, however.

F1tz -

The criminal evidence code doesn't apply here. You're not in a criminal trial facing a criminal charge. The R.O. was issued in a civil court hearing. The only thing a judge needs to issue such an order is enough convincing that there is the reasonable possibility that the petitoner's fear has grounds. That's a VERY low standard. There need not be overwhelming evidence such as the high burdern of "beyond a reasonable doubt" needed for criminal conviction. Some judges "get it" that people can and do make untrue statements to obtain such orders, and those judges want to see things like police reports before issueing an order, others will always err on the side of caution and pass them out like candy if a petitoner says "I'm afraid". Most are somewhere in between. The reason for judicial bias in such cases is very easy to understand: there is a very LOW burden needed (better safe than sorry philosophy), AND, no judge wants to be the one hounded by the press, family, public, etc. when an order is denied and the petitioner ends up dead at the hands of an ex with a supposed history of violence against the victim (although the reality is that the order itself can't and won't stop someone from committing crimes against the petitioner).

[f1tzg3r4ld]

Thanks for the information. I just read about AB840 and FL3044 and how they affect custody cases. I can't let this go. I have to do everything possible to get this false order off my record. If a lawyer can help me then there has to be a way for me to help my self.

Here is a link to the AB840 info if anyone is interested.
http://www.leginfo.ca.gov/pub/99-00/..._sen_comm.html

This is the part that caught my eye.

"This bill would create a rebuttable presumption that an
award of sole or joint physical or legal custody of a child
to a person who has been found in a court proceeding to
have perpetrated domestic violence in the preceding 10
years would be detrimental to the best interest of the
child."

Not sure if this was enacted but I am looking.
Please bear with me if I bring up irrelevant things. I am not a lawyer. Just trying to figure this out.

[aardvarc]

The basis has already been explained: if you can show the court that the petitioner's actions (contacting you, coming over, etc.) indicate that she is NOT, indeed, in fear of you, as she indicated in her petition to the court, then you can petition the court to consider dropping the order - the same advice that Mr. K gave above. That doesn't mean that her saying you hit her won't STILL override. What you're not grasping is that the issuing of an order isn't legally the same as a conviction - even if it feels and often functions so, and an appellate process and burdens of proof aren't the same.

The reality is that so long as the judge remains convinced that the order has merit, it will stand - even if you somehow could PROVE beyond all reproach that you never hit her.

Bottom line? You're NOT likely to succeed in removal of an already issued order without the services of an attorney. Whatever happened, whatever you said or didn't say at the initial hearing, was enough for the order to issue. You're simply not likely to dig out now without someone who both knows your local courts and the proclivities of your local judges, AND has EXPERIENCE in dealing with the issue. This isn't going to be a do-it-yourself matter, no matter HOW much internet research you engulf yourself in.

[CourtClerk]

If she has a restraining order, she is violating it by being at his house all the time, isn't she? If you want someone to stay away from you, going to them would seem to me to negate the order?

The DVRO also probably allows for peaceful contact when the child is involved...

[f1tzg3r4ld]

It does. I am mainly concerned with how to get this false restraining order removed. Can anyone give me any advice or point me in the right direction with this.Is there a limit on how long I have to get this order dismissed. There was no evidence, no calls to the police, and no pictures of bruises be cause it never happened. She used it as a tactic to gain an advantage in the custody case because of how the law works regarding restraining orders and custody. I know that there is a way I just don't have 10 or even 1 thousand dollars to give to a lawyer. Can I get help from the ACLU or some other organization?

The basis has already been explained: if you can show the court that the petitioner's actions (contacting you, coming over, etc.) indicate that she is NOT, indeed, in fear of you, as she indicated in her petition to the court, then you can petition the court to consider dropping the order - the same advice that Mr. K gave above. That doesn't mean that her saying you hit her won't STILL override. What you're not grasping is that the issuing of an order isn't legally the same as a conviction - even if it feels and often functions so, and an appellate process and burdens of proof aren't the same.

I contacted the police the last few times she comes over banging on my door asking me if I have a girl in there. They say there is nothing they can do. I ask them to file a police report so that I can have proof but by the time they get there she runs off and they don't actually give me any kind of paperwork they just say they will document it.

I thought about recording what she is doing but California is a two part consent state and I wouldn't be able to use any kind of recoding in court.

How do I prove what I am saying to the court. The police are unwilling to help me get this documented so that I can have it dismissed. I am not willing to accept that that's just the way it is. If I had money and a lawyer I could protect my rights but without them I have none.Plz help if you have any solid advice.