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In Memory of 09-11-01
Lest We Forget
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RESTRAINING ORDERS:
Do you Need a Restraining Order?
The Situation:
If the only exercise you and your spouse get is
beating the hell out of each other and the kids; if child abuse,
child neglect, drinking, drugs, cheating, lying, and venereal disease are a
regular part of your conversations with your spouse; if the local police know
you, your spouse and children on a first name basis, then you might be a
candidate for a restraining order.
All kidding aside, hardly a day goes by
anymore, when you don't pick up an evening newspaper and read
about someone's estranged boyfriend
murdering his ex-girlfriend and/or the
children. On T.V. you hear about the mother who drowned her children, or tries to kill them with a
drug overdose because "God" spoke to her. Not to
mention the lady who cut off her husbands penis a few years ago. Ouch!!!
Your Problem:
First of all Restraining Orders are not bullet proof, nor are
they magic. Second, if you are unwilling to have the police enforce the order,
don't bother to get it in the first place. Third, Restraining Orders are not a
game, some judges are holding the victims in contempt if they don't obey the
orders as well.
In Los Angeles
County, if you call the police to have your beloved arrested and later change
your mind, guess what happens? Nothing. They will prosecute them anyway. There
is no such thing as changing your mind on these types of cases anymore. You
call, they are arrested and prosecuted. Far too many battered women are
"hope-a-holics" that hope a night in jail will straighten up their
worthless men. Forget about it, because it doesn't work that way. Change
takes effort on everyone's part and you cannot do it by yourself.
A Restraining Order is
basically allows a Police Agency to
short cut an investigation and simply arrest a person for not obeying a lawful
Court Order instead of arresting them for a totally new crime. Now I realize that this example is an over simplification of a
complex procedure, but it gives you the idea of what is happening. Restraining
orders are primarily used to keep the peace and prevent someone from exploiting
or injuring another person. They work best with reasonable people and not
crazy people. Please keep that in mind, when you get one.
Examples:
The only limit to the type of orders that a Court may issue
to restrain someone's conduct is only limited by their imagination and need to
keep the peace. Examples of Restraining Orders could include such things as:
1. Restraint on personal conduct order which prohibits a party from:
- Contacting,
- Molesting,
- Harassing,
- Attacking,
- Striking,
- Threatening,
- Sexually assaulting,
- Battering,
- Telephoning,
- Sending messages to,
- Following,
- Stalking,
- Destroying the personal property of,
- Disturbing the peace,
- Keeping under surveillance, and
- Blocking movements in public places and thoroughfares, of another person.
2. Property Restraint Orders which prohibits a party from:
- Transferring,
- Encumbering,
- Hypothecating,
- Concealing,
- Disposing or real or personal property;
3. Financial
Restraining Orders which prohibit a party from:
- Cashing,
- Borrowing against,
- Canceling,
- Transferring,
- Disposing of,
- Changing the Beneficiaries of any insurance policy.
In addition the Court can give one
party temporary exclusive use of a piece of real or personal property of the
parties. In an appropriate situation the Court can order one party to move out
of the residence and not return.
4. Orders involving minor children which prohibit a party from:
- Having unmonitored visitation with the minor children,
- Any visitation with the minor children,
- Not removing the minor children from the State of California and certain
counties, and
- Preventing a party from making derogatory remarks about the absent parent.
- Consuming alcohol or dangerous drugs before and during visitation.
These lists are not meant to limit
the possible orders that Court may issue. If anything these are just some
examples of the types of restraining orders that can be issued.
Ex-parte and Other Types of Hearings:
If you are in an abusive or dangerous situation,
you would be wise to discuss obtaining restraining order as a preventative
measure. Sometimes you can obtain these order without having to first give the
offending party notice that you are asking for these orders. If you feel that
the offending party is a flight risk or may attempt to hurt you for obtaining
these orders, notice of the initial request may be unnecessary. In any event a
hearing will be held usually within 20 to 30 days, where both parties can
explain their actions to the Court. After the Hearing the Court may make the
orders permanent for up to three (3) years.
Termination of Restraining Orders:
Recently several inquiries were made regarding how to
terminate a Restraining Order. Basically there are three ways to do this:
-
Expiration of the Order by operation of law, or letting it go off calendar;
-
Mutual consent of both parties and the approval of the issuing Court;
-
By either party filing a Motion or Order to Show Cause requesting termination of
the Order.
In the first example, the time limit
for the effectiveness of the order has expired. For example if the order was
valid for three years, no application for an extension was received by the
court, and the three year time period has elapsed the order will automatically
expire by itself. As will a temporary restraining order unless you go through
with the hearing. It goes "off calendar."
In the second example, if both
parties agree that the need for the Restraining Order has been resolved and the
issuing Court concurs, then the Court may terminate the Restraining Order early.
In the last example either party may
make application to the issuing Court to terminate the restraining order for
good cause shown.
I believe that these reasons are self
explanatory and really should not need further explanation. However, if
you have a valid restraining order and the restrained party has convinced you to
terminate the order, before you do this you should carefully consider what you
are doing before you consent. If the restrained person re-offends, the Court is
going to be very concerned with the possibility that you are playing games. You
shouldn't request a restraining order lightly, nor should you terminate one
lightly either. I would recommend discussing this with your attorney and
your therapist or counselor if you have one before you consent. I would also
suggest that you read the following section very carefully.
Final Warning:
Any time that you need a restraining order
you should realize that the possibility exists that you could be seriously
injured or even killed. You should never play games with an offending party,
because you risk enraging them further. Restraining orders are not meant to get
your spouse to suddenly love, respect or even treat you differently. The purpose
is to protect you from a dangerous individual. If the person making the request
doesn't understand the danger that they face, then obtaining a restraining order
may be largely a waste of time.
Another situation
that you should consider is the safety of your minor children. If you spouse is
abusive and you take no action to protect the children from that spouse, you
stand a good chance that you could lose custody of your children. This is more
likely to occur often in the most serious cases, but not always. You may feel
comfortable gambling with your life, but you have no right to risk the lives of
your children. In appropriate cases, the Child Protective Service will
remove the children and place them with a relative or foster care until you come
to your senses.
If you decide that you need such
an order to keep such a dangerous person away from you, then you must be
mentally and physically prepared to do whatever it takes, including prosecuting
the individual, to see to it that the orders are obeyed. If you waiver and let
the offending person back, then you are not only placing yourself and your
children at risk, you are demonstrating to the Court that your situation is
frivolous. In any event, you should discuss the ramification of obtaining a
restraining order with an attorney before embarking on this course of action.
People have died playing these types of games because they never believed it could
happen to them.
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