Everything you need to know about domestic violence and Family Law. A 6-part series.
Part 2: I am the restrained party. What do I do?
As a family law firm, we understand that having a restraining order filed against you can be a very emotional and stressful experience. If you are the restrained party, or if someone is seeking to restrain your conduct, there are several important points to keep in mind.
First, we must cover this critical information you need to know if a restraining order is filed against you:
- You must be personally served at least 5 days before the court hearing. This may be done by a Sheriff Officer, a professional process server, or by a family member or friend of the protected party. This means that someone is personally handing you the filed restraining order documents.
- Given the shortened length of time between service and the court hearing, as the responding party you are legally entitled to one continuance if you would like extra time to prepare or find an attorney. You may also ask to proceed at the first hearing, but seeking legal counsel to understand your rights and consequences is always advisable.
- You have the right to file a response before the hearing. But be very careful with what you write and submit. Without realizing it, you may admit to the allegations against you. If you have a related criminal case pending, seek legal counsel to make sure that you protect all of your rights.
Second, you should also to be aware of the following:
The burden of proof in criminal court is very different from family court. Depending upon the severity of the allegations against you, you may have related criminal charges against you. It is important to know that you may be found not-guilty in criminal court and still have the family court grant a domestic violence restraining order against you.
We are repeating this multiple times during this post, because of the potential negative consequences and risk to your rights. We strongly recommend that you seek legal advice about your specific case to ensure you have a better understanding of the legal process and how to proceed and protect yourself.
**The 4th installment of this series will specifically address how a restraining order will impact other issues in your family law case, including how it may impact spousal support, as well as custody and visitation***
What else should I know when a Restraining Order is filed against me?
Will a restraining order show up on a record check?
Restraining orders in California are entered into the California Law Enforcement Telecommunications System, “CLETS” database. This means that all police departments and law enforcement agencies within California will have access to the filed restraining order. It is possible that while completing a background check for employment, school, or seeking a state licensure, that the restraining order will appear on your record.
What other impact might a restraining order have on my life?
One component of a restraining order is limiting the movement and actions of the restrained party. As part of a restraining order, you may:
- Be forced to leave your home
- Be required to continue paying for the protected parties’ expenses
- Be limited in your movement: prevented from going to your child’s school or daycare; prevented from going to a family member’s home; prevented from going to other places if those are locations the protected party frequents
- Be prevented from having contact with the protected party, and possibly your child(ren)
The restrictions of a domestic violence restraining order can significantly impact your daily life. It can force you to find new living arrangements, spend more money than usual to have visits with your children, and cause you to change your daily habits—depending upon the locations that it prevents you from going.
What impact will a restraining order have upon my immigration status?
If you are not a citizen of the United States, the issuance of a restraining order may have significant negative consequences for your immigration status. Depending upon the specific facts, circumstances, allegations, and findings of your case, a restraining order may qualify you for deportation, it may also change your status so that if you leave the United States you are prevented from re-entry.
What happens if I violate the order?
Any violation of any type of a restraining order will open the possibility of criminal and civil penalties against you.
- A civil penalty would be a fine.
- A criminal penalty could include jail time or probation.
Even if you are not arrested, any documented violation could have negative consequences for your family law case. A judge may use violations as a reason to make a restraining order permanent during a renewal request, or could use evidence of your failure to follow the restraining order as grounds to prolong your court-ordered separation from your children. Violations of a restraining order are serious and are treated as such by the family court.
IMPORTANT BEHAVIOR GUIDELINES:
• NEVER answer your phone, or reply to a text or DM if it’s coming from the protected party.
• If they come to your place of employment or to a location that you are already at, leave immediately.
Why this is so important:
It is only the restrained party who is capable of violating the restraining order. Any contact will be construed as you violating the order, it will not matter if the protected party initiated the contact. The protected party may continue to contact you without repercussions.
How do I prepare to defend myself?
We do suggest working with an attorney to make sure that you have maximized your defenses and have a strategy to present your defense.
Defense Strategy #1: You are not the primary aggressor
The most common defense to restraining order cases is that you were not the ‘primary aggressor’. This doesn’t necessarily mean that you were acting in self-defense, but that you engaged with the other person only after they initiated the conflict.
Defense Strategy #2: Self Defense
Self-defense is another common defense. That you did engage with the protected party, but only because they attacked you first, and you needed to defend yourself.
Defense Strategy #3: Misrepresentation of Facts
Perhaps the protected party has misconstrued the events that occurred. If this is the case, it is very important to clearly document how and why the protected party has misrepresented the facts to the court.
We represented a client with allegations of attempting to run over the protected party. The client explained to the Santa Clara court that they were being falsely imprisoned and were afraid for their safety, and so they did operate their vehicle, but the protected party was preventing them from leaving the location. The court found that the Protected party did not meet their burden of proof and denied the restraining order.
Ultimately, it is the requesting party’s obligation to meet their burden of proof that abuse did occur. The judge must find that more likely than not, abuse did occur. It is not guaranteed that a requesting party will be successful.
The court will not grant the requesting party’s request for a restraining order when that party:
- Is too vague
- Makes contradictory statements
- Can’t clearly identify and describe what happened
Or, if the judge finds the responding party’s description of events is more credible.
Key takeaways regarding restraining orders:
Things you must do:
- Pay attention to the notice you receive
- Participate in the court process & show up at all court hearings
- Consult with an attorney
- Thoughtfully think about and plan for your defense
Things you must not do:
- Do not have any contact with the protected party
- Do not violate any of the terms of the restraining order
- Do not contact any friends or family members of the protected party
- Do not post about the allegations against you on social media
- Do not post anything about the other person on social media
- Do not blow off these allegations or treat the filing lightly
- Do not destroy any evidence
As family law attorneys who are experienced with San Jose and Santa Clara family court, we understand the stress associated with having a restraining order filed against you. At Gomez Edwards Law Group, we have a combined 20 years of experience defending against domestic violence restraining orders. We are here to answer any questions you have or provide guidance about your case and the allegations against you as you navigate this process. For a consultation, please call us at (408) 413-1200.
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