Your phone rings during the late afternoon while you are at work, and you are told by a person you have never spoken to before that you must appear in the morning at a hearing for an ex parte restraining order. Because you think that there was no basis for anyone imposing a restraining order on you, you decide not to miss work to appear at the hearing. When you return home from work that day, you are informed by a California law enforcement officer that you are not allowed to stay in your own residence and that you must leave without your children. The officer hands you paperwork that indicates there will be a subsequent hearing with an order to show cause in about 21 days in the future, but during the interim, you will have no access to your home, children or property.
This might seem like a worst case nightmare scenario, but it is a reality experienced by many people every day in San Jose, San Francisco and throughout the Bay Area. You can be kicked out of your home, kept from your children and forced to surrender any firearms without a chance to produce evidence or to receive reasonable notice of the allegations against you. A phone call may be the only notice you receive before you suffer these harsh consequences that must be endured until the subsequent hearing on the allegations.
The request for a domestic violence restraining by a spouse, intimate partner, girlfriend/boyfriend or co-parent or harassment based civil restraining order by a neighbor, co-worker or caregiver may be a valid form of protection of victims. Requests for restraining orders are such powerful tools in family law disputes that they may be used as a sword by an unscrupulous party seeking to gain an advantage in a divorce or child custody case rather than a shield of protection against violence or intimidation. Even if you are certain that there is no factual basis for abuse or harassment allegations, court proceedings for restraining orders must be taken seriously because failing to oppose such orders can have severe consequences that include:
- Exclusion from your residence without adequate opportunity to safeguard your property or possessions
- Restrictions on access to your children that could result in suspension of all contact or supervised visitation
- Requirements that you not come within a minimum distance of your significant other or certain places that the protected party frequents
- Orders requiring relinquishment of all firearms
- Lack of eligibility for a security clearance leading to termination for employment or the loss of occupational opportunities
- Restrictions on access to your kids, their school, daycare provider and other places where your kids are present
- Possible felony conviction carrying a thirty day jail term and maximum fine of $2,000 with penalties increasing for subsequent offenses
- Mandatory participation in anger management classes
- Increased child support obligations because of limits on custody for a perpetrator of domestic violence
- Restraining orders become a public record discoverable by future employers, landlords and others
This not an exhaustive list of all the types of adverse consequences that may result if you are subject to restraining orders so it is important to prepare a compelling defense to such allegations. Restraining orders of one type or another are rapidly evolving into one of the most frivolously requested and misused court orders in the family court system. If the police are summoned to respond to a domestic dispute call, the police often arrest one of the parties. Regardless of whether the district attorney files criminal charges, the party alleging domestic violence will typically file in family court for protective orders frequently on an ex parte basis the day before the hearing.
Even if you are unable to appear at an ex parte hearing seeking domestic violence protective orders, it is important to keep in mind that the restraining orders are only temporary. The hearing that will occur approximately three weeks later will provide an opportunity to submit a written response, to challenge the legal and factual basis for the restraining orders and to assert your rights to custody and visitation of your children.
Our experienced restraining order legal defense team at the Law Offices of Lucy S. McAllister knows how to prevail when opposing restraining orders. Ms. McAllister has been representing clients facing potential restraining orders in family court and criminal court for over 30 years. Because she has taken over 250 cases to trial in Superior Court, Ms. McAllister knows how to present persuasive evidence and to challenge the veracity of witnesses to protect her clients from the adverse impact of restraining orders. When opposing ex parte temporary restraining orders, for example, Ms. McAllister will emphasize any lapse in time between alleged incidents offered to justify the request for restraining orders and the ex parte application to persuade the judge to deny emergency orders because the delay shows there is no real emergency to justify the ex parte application. We may also emphasize the lack of medical records or law enforcement reports offered to substantiate allegations of domestic violence.
Bay Area Restraining Order Attorney, Lucy S. McAllister, understands that your reputation, freedom, parental relationship and future occupational opportunities may all be at risk when you are facing restraining orders so we tenaciously defend our clients’ while opposing requests for restraining orders in courts throughout the Bay Area.
We offer a confidential consultation so that we can explain your legal rights and the process of opposing restraining orders.