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ralph124c
08-10-2011, 07:04 PM
I have a friend who would up getting in trouble with his GF. They started fighting, and she wound up taking out a restarining order against him. Now, one year later, he goes back to court (after moving to an adjoining state and having no contact of any kind with her)-and the judge renews the order for another year.
Seems unfair to me, and there has been no contact of any kind.
Can this be appealed? Having a RO on your record looks bad..and it is often a basis for denying someone a job.
Is there some way to overturn such an order?

Whack-a-Mole
08-10-2011, 07:15 PM
IANAL but I would be surprised if the legal system offered no means of appeal from a single ruling.

The question is if it is worth his time and money to bother? If he has no contact with her and lives in another state not sure how it matters to him beyond being annoyed the state considering him a threat to her.

Joey P
08-10-2011, 07:17 PM
Wouldn't the appeal still be on his record anyways? Honestly, to an employer (or most anyone else) a RO or an RO that was appealed are going to look the same.

ratatoskK
08-10-2011, 08:10 PM
If he has no contact of any kind with her, why does he care if there's a restraining order?

kaylasdad99
08-10-2011, 08:27 PM
Why? Good question... (http://www.youtube.com/watch?v=M6boeAfMhao)

Because NOBODY would form an unfavorable opinion of a person based on the simple fact that a restraining order has been issued on that person.

Might be interesting to learn if one (an RO) can not only be reversed, but expunged.

Al Bundy
08-10-2011, 08:32 PM
First, why is there a restraining order to begin with? This did not happen without notice. The friend had the opportunity to go to court in the first place. And when the renewal came up, he would/should have had notice then too. What happened? And now suddenly he wants to make a court appearance to appeal? Where is his counsel in all this?

In my opinion, a domestic restraining order in another state means very little to an employer. It may be that the friend merely wants revenge on the old GF in any way possible. Of course, she is still geeking him a year later too.

PS> The other state could only be two blocks away and the GF may have great reasons for the order. I could care less who has a restraining order on me when I don't plan on violating the terms anyway. I can't help but think there must be a history here that supports the court's decisions.

UltraVires
08-10-2011, 08:40 PM
The question is if it is worth his time and money to bother? If he has no contact with her and lives in another state not sure how it matters to him beyond being annoyed the state considering him a threat to her.

It is illegal to possess a firearm when subject to a restraining order. I don't know if the OPs friend likes to hunt, target shoot, collect guns, or carry a weapon for protection, but that is something that could be a factor.

kaylasdad99
08-10-2011, 08:53 PM
It is illegal to possess a firearm when subject to a restraining order. I don't know if the OPs friend likes to hunt, target shoot, collect guns, or carry a weapon for protection, but that is something that could be a factor.Is that a federal restriction that blankets the nation*, or is the RO subject free to arm himself in a state other than the one that has placed the sanction upon him?

*Be kind of weird to think that California could tell Texas "This guy has no right to bear arms in your state," and Texas would be compelled to enforce the restriction. Not saying it can't be the case, just that it would be weird.

UltraVires
08-10-2011, 09:11 PM
Is that a federal restriction that blankets the nation*, or is the RO subject free to arm himself in a state other than the one that has placed the sanction upon him?

*Be kind of weird to think that California could tell Texas "This guy has no right to bear arms in your state," and Texas would be compelled to enforce the restriction. Not saying it can't be the case, just that it would be weird.

Federal. 18 USC 922(g)

kaylasdad99
08-10-2011, 09:13 PM
Thanks for fighting some ignorance today, jtgain! :)






ETA: Still weird, though.

obbn
08-10-2011, 10:03 PM
Good luck with that. I went through a very nasty unbelievable divorce. My ex Nut Job made false accusations and got a restraining order against me so I couldn't go to my home. She used this restraining order to keep me out of my house while she moved her boyfriend in. Anyways, I tried to fight the restraining order. In court my attorney got her up on the stand and asked her:
"Had he hit you, pushed you, shoved you, slapped you, etc etc ?" For some reason she couldn't bring herself to lie in court and answered truthfully "no" to all of the questions. So I am thinking there is no way she is going to get an order. The judge turns to her and says "So, why do you want a restraining order". She says "because I am scared of him". Judge grants her a 1 year restraining order against me. Boyfriend moves in that night.
I was very upset at this decision as I had done NOTHING wrong. I asked my attorney, how in the world can this happen when she admitted I did nothing to her? His response was that Judges "error on the side of caution". So much for my rights as a human being. He told me that if you are a man and a woman makes a allegation agaisnt you, it doesn't matter if it can be proved or not. You are guilty until proven innoccent and you aren't going to be proved innoccent. Gotta love our judicial system.

Fubaya
08-10-2011, 10:12 PM
They can be appealed, but it's probably expensive and appeals are mostly based on errors of procedure, fact or law and there's probably not much to base an argument on. Not renewing a restraining order is a judgement call and one that usually makes a judge say "Ehhh... what good could come of it? They've been doing fine not being around each other, let's just keep doing that."

LouisB
08-11-2011, 06:38 AM
My ex-darling Marcie obtained a restraining order against me; that order was vacated as a condition of our divorce. Therefore, I assume there is a legal defense against it, at least in Florida but I imagine both parties would have to agree to vacate the original order. It always burned my ass that she was able to appear before a judge and have the order issued based entirely on her testimony; I wasn't informed of the hearing and had no chance to challenge the issuance of such an order; the first I knew of it was when the cops showed up to confiscate my handgun.

UltraVires
08-11-2011, 08:52 AM
Let's be honest. ROs are handed out like candy. As we have seen in this thread the man does not have to be guilty of any crimes to have one entered against him. I think the ONLY way to make sure that it doesn't get renewed indefinitely is to come to an agreement (read: cash settlement) so that he and she can jointly petition the court to rescind the order.

That being said, since there is an RO, you can't just call her up and start negotiating. I'm not sure how far an attorney can contact her on your behalf. If I was in the situation, I would do what it takes to get it settled, not only because I'm a gun guy, but any employer or otherwise who sees that on your record is going to assume that in your free time you sit around and drink beer in your underwear and slap the shit out of your wife/gf when dinner is five minutes late.

It's a sad commentary on the law when vindictive ex wives/gfs can abuse the legal system and use a tool that was meant to protect battered women for their own personal goals.

EmAnJ
08-11-2011, 09:07 AM
I was very upset at this decision as I had done NOTHING wrong. I asked my attorney, how in the world can this happen when she admitted I did nothing to her? His response was that Judges "error on the side of caution". So much for my rights as a human being. He told me that if you are a man and a woman makes a allegation agaisnt you, it doesn't matter if it can be proved or not. You are guilty until proven innoccent and you aren't going to be proved innoccent. Gotta love our judicial system.

Insignificant nit pick - it's 'err' on the side of caution, not error.

anson2995
08-11-2011, 09:36 AM
Federal. 18 USC 922(g)
My reading of that law says that it's illegal to sell guns if you have a restraining order, and perhaps to buy guns. It doesn't mean you have to turn in guns that you have.

Restraining orders can be contested, and if it's affecting the OP's friend's job prospects, it probably should be. That could be grounds for objection to the renewal. If this person is in another state, doesn't have a history of violence, and hasn't continued to harass the ex-GF, a reasonable judge could be persuaded.

Turek
08-11-2011, 09:49 AM
Restraining orders can be contested, and if it's affecting the OP's friend's job prospects, it probably should be. That could be grounds for objection to the renewal. If this person is in another state, doesn't have a history of violence, and hasn't continued to harass the ex-GF, a reasonable judge could be persuaded.

I bolded two VERY important words in your statement.

ralph124c
08-11-2011, 09:58 AM
Thanks for the replies:
another question-are these ROs constitutional? It seems like you are declared guilty without any trial. Given that an active RO can prevent you nfrom earning a living, it seems a gross abuse of a court's power over you.
What is this guy supposed to do? He lives far away from this woman, and has no contact with her.
Pretty scarey situation!:(

kenobi 65
08-11-2011, 10:09 AM
another question-are these ROs constitutional? It seems like you are declared guilty without any trial.

Well, obviously, the Supreme Court has never found them to be unconstitutional (but that said, the Supreme Court only rules on cases which are brought before them; I have no idea if such a case has ever been brought to that level.)

It's clear that the general mindset of the courts in this matter is to err on the side of caution -- better to issue the RO, and potentially give the restrainee issues, than to not issue the RO, and facilitate bodily harm against the filer (though, I have to suspect that it's not uncommon for women to be assaulted or murdered by their spouses / exes, even with a RO in place).

Elendil's Heir
08-11-2011, 10:18 AM
Restraining orders, and the structure of domestic violence laws generally (they only date from the early 1970s in most states) have been upheld as constitutional everywhere, as far as I know.

In Ohio, a battered individual or victim (most often but not always a woman) can go to court and get an ex parte RO after agreeing to be the complaining witness (CW) in a criminal case against the defendant. The charge(s) might be domestic violence, assault, stalking, etc. ROs can also be issued in civil cases where the alleged bad guy is not actually charged with a crime. Ex parte means the defendant is not informed of the hearing and need not be present for the RO to be granted.

Restraining orders issued by my Ohio muni court typically require the defendant to stay away from the CW, to have no contact of any kind with her, not to ask anyone else to do something the order prohibits him from doing, to return any keys or garage door openers, to not interfere with her right to occupy her dwelling, to refrain from alcohol and nonprescription drug use while the case is pending, etc. The RO may also address the question of custody and visitation, if the parties have children. The RO is served upon the defendant, and given to the county sheriff and to police in the cities where the CW lives and works.

A followup hearing is usually held within a few weeks. The defendant may appear and enter a plea to the criminal charge(s), if any. He may also object to the RO, but in the vast majority of cases, he doesn't. It's up to the trial judge or magistrate to alter the RO as he sees fit, and this does happen from time to time. As obbn said, though, most courts figure, "Better safe than sorry."

ROs are, in practical terms, only enforceable within the state where they've been issued, notwithstanding the U.S. Constitution's "full faith and credit" clause and subsequent Federal laws to that end. Other states IME don't care much if a CW has a RO issued elsewhere; better to get another one in that second state if you, as a CW, are going to be spending much time there.

Despite what you see in movies, IME it's very rare for a RO to be violated in any significant way. In almost 20 years as a lawyer, incl. lots of DV work, I've never heard of anyone subject to a RO issued in a case in which I've been involved actually then hurting or killing a CW. It happens, but not nearly as much as Hollywood would have you think.

Romeo and Whatsherface
08-11-2011, 10:55 AM
According to http://www.dvmen.org/dv-13.htm, the number of RO's in domestic cases is between 500,000 and 850,000 (over 1 million if you include rape and stalking cases). That's a lot of RO's. If there are that many out there, it would seem they wouldn't be as much of a detriment on a resume, but maybe they are.

A restraining order is not a sentence; it's a court order and does not ascertain guilt, even though obviously many people may see it that way. An order to show cause, for instance, has nothing to do with guilt or innocence but is, if I understand correctly (IANAL), simply a means for a judge to get more information.

Beyond the harm it may do to someone's career and possibly their hunting or gun collecting ambitions, it sounds like the real beef here is the sense of anger and injustice at what is perceived to be a punishment and a personal slam. I wonder if judges don't see it more as a way of keeping two parties apart and therefore avoiding trouble.

By the way, the site referenced above has lots of good, helpful information for people who have RO's against them. It may deepen your anger, but it will give you some ideas as to how to proceed.

LouisB
08-11-2011, 11:01 AM
My reading of that law says that it's illegal to sell guns if you have a restraining order, and perhaps to buy guns. It doesn't mean you have to turn in guns that you have.

Restraining orders can be contested, and if it's affecting the OP's friend's job prospects, it probably should be. That could be grounds for objection to the renewal. If this person is in another state, doesn't have a history of violence, and hasn't continued to harass the ex-GF, a reasonable judge could be persuaded.I can't comment on anyone's case but my own and that was in Florida. I WAS required to surrender my handgun; in fact, three deputy sheriffs were sent to my residence specifically to confiscate my handgun. Two of the three were, IMHO, not fit to wear the badge but that's another story.

Elendil's Heir
08-11-2011, 12:15 PM
In Ohio, there's a box on the form to check if the subject of the order has guns or access to them, to warn law enforcement if push comes to shove, but I've never heard of anyone being ordered to surrender their weapons as a condition of the order. Guns may be seized if the cops actually come to the house on a DV call, but that's different.

Fotheringay-Phipps
08-11-2011, 12:35 PM
A restraining order is not a sentence; it's a court order and does not ascertain guilt, even though obviously many people may see it that way. An order to show cause, for instance, has nothing to do with guilt or innocence but is, if I understand correctly (IANAL), simply a means for a judge to get more information.

Beyond the harm it may do to someone's career and possibly their hunting or gun collecting ambitions, it sounds like the real beef here is the sense of anger and injustice at what is perceived to be a punishment and a personal slam. I wonder if judges don't see it more as a way of keeping two parties apart and therefore avoiding trouble.I think you're assuming a case in which, like the OP, the parties are in different locales anyway. In the vast majority of cases, the parties are in close proximity, and the RO has the very real effect of banning the subject of the order from all sorts of places that may be important to them, such as their own home, or favorite hangouts and/or shopping places. Pretty significant impact, I would think.

Which is not to mention the impact on future custody and support rulings.

Which is also not to mention the impact on employment background checks, as others have noted.

There was a judge in NJ who ruled that due to the severe impact on the life of the person subject to the order, you should need a higher standard of probability than the current "50.1% likelihood", but his ruling was overturned.

[Of course, in reality the actual likelihood required for a RO is a lot lower than 50.1%. Judges are a lot more worried about violence being inflicted on someone to whom they had denied a RO than they are about inconveniencing some guy.]

anson2995
08-11-2011, 12:35 PM
Back to the question in the title... "can you appeal a restraining order?" The answer is yes. Typically, the process works like this. The applicant asks for a temporary restraining order, which is usually granted with minimal burden of proof. The judge will set a hearing, within a week or two, at which point he'll ask for more detail and the subject of the restraining order has a chance to challenge it.

I'm inferring from the OP's description that this is what happened, and that a year later the OP's friend went to court for a hearing about whether or not the RO should be extended. If that's the case, then he's already had two opportunities to appeal the restraining order. If he didn't attend these hearings, or did so without an attorney, then he's not likely to have much success.

I can't speak to specific state laws, but I would imagine that one can challenge a RO at any time. Just because a judge issued an order of protection for a year doesn't mean he has to wait a year to challenge it.

Max Torque
08-11-2011, 02:26 PM
My reading of that law says that it's illegal to sell guns if you have a restraining order, and perhaps to buy guns. It doesn't mean you have to turn in guns that you have.

Restraining orders can be contested, and if it's affecting the OP's friend's job prospects, it probably should be. That could be grounds for objection to the renewal. If this person is in another state, doesn't have a history of violence, and hasn't continued to harass the ex-GF, a reasonable judge could be persuaded.

Here's the relevant portion:
(g) It shall be unlawful for any person -
(8) who is subject to a court order that -
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that
would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C) (i) includes a finding that such person represents a
credible threat to the physical safety of such intimate partner
or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury....
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
Note the "possess in or affecting commerce" portion. The "commerce" reference isn't precisely about sales, it's more of a nod to the commerce clause (http://en.wikipedia.org/wiki/Commerce_clause) to affirm that Congress has the power to regulate firearms.

The warning that the respondent cannot possess firearms is included on all protective orders we issue, in clear language. The only exception is for people who are actively-employed police officers at the time the order is issued.

hajario
08-11-2011, 02:42 PM
My gf was recently granted a RO against her ex here in CA. The process was as follows:

She applied for a Temporary RO by filling out a simple form and briefly going over what has been going on. TRO's are almost always granted. A hearing was set for a couple of weeks later. Her ex was served with the TRO which had the hearing date on it.

The hearing is actually a preliminary hearing. The gf presented her evidence and the ex was allowed to respond. The judge can then decide to not grant the RO, to grant the RO or to hold a regular hearing where more detailed evidence is presented. I believe that the third option is more common but my gf's ex was such a fucking nut case that she was granted a three year RO on the spot. I saw the paperwork and since the RO was granted, the ex would have been required to give up any guns that he owned but he didn't own any so it didn't matter.

It seems odd to me that the OP's friend wasn't informed of the hearing and given the opportunity to defend himself.

The fact that someone lives far away doesn't mean that they can't harass someone and need a RO. My gf's ex sent violent emails to her, called her at all hours, called her friends and family at all hours to tell them how horrible she is, emailed her business contacts and accused her of fraud, made naasty posts about her on blogs and message boards populated by real and potential clients as well as harassing her in person.

Fubaya
08-11-2011, 05:21 PM
The OP did say the friend went back to court a year later and the order was renewed.

Restraining orders like this are civil matters and shouldn't affect a person's job. It may not even come up unless the job requires an extensive background check, and even if he appealed the renewal, it's still on his record anyway.

AndyLee
08-11-2011, 05:29 PM
What is the difference between civil and criminal restraining orders?

I would assume since companies these days are looking at everything, from credit checks to reference checks it will matter.

If it's a choice between someone without a restraining order and someone with a restraining order who would you choose?

Farmer Jane
08-11-2011, 07:24 PM
I had a civil RO filed on me from a nutty ex bf. He did it because he (presumably?) knew I was job searching AND it was one more way for him to be a dick. Yes, an outstanding RO hurts if your potential employer does a court search and school districts definitely do that. It was also a retaliation for my RO since he was stalking me. (Mine was a legal issue. His was civil.)

:crazy:

My friend is an atty and I called him up and we went to the preliminary and then got a hearing. The judge stopped the hearing in the middle of it and said he wasn't going to grant this. And then he turned to me and said, "I'm glad you fought this. I never side with the defendant. I prefer to err on the side of caution, but this man here just wasted my time."

My friend (who's a criminal defense atty) said he'd never seen one not granted and he was there for moral support, not because he thought I had a chance. And then bailiff came up to me afterword and said, "That guy [the ex] is one of the slickest I've seen. What does he do for a living?"

So, yeah. It happens.

Farmer Jane
08-11-2011, 07:26 PM
What is the difference between civil and criminal restraining orders?

I would assume since companies these days are looking at everything, from credit checks to reference checks it will matter.

If it's a choice between someone without a restraining order and someone with a restraining order who would you choose?

Civil: Anyone can petition.

Criminal: Someone commits a violent crime against you (or some kind of harassment) and it's automatic (or you in some cases, you have to request it).

But with a RO, neither party can contact the other. I can't petition for a restraining order on Joe Bob and then give him a call next week.

hajario
08-11-2011, 08:15 PM
But with a RO, neither party can contact the other. I can't petition for a restraining order on Joe Bob and then give him a call next week.

In CA, there is an exception if the two parties have kids and joint custody. Brief communication solely relating to the children is allowed. (My gf and her ex don't have kids but I saw the order and there is an allowance for this if a certain box is checked.)

obbn
08-11-2011, 10:46 PM
I had a civil RO filed on me from a nutty ex bf. He did it because he (presumably?) knew I was job searching AND it was one more way for him to be a dick. Yes, an outstanding RO hurts if your potential employer does a court search and school districts definitely do that. It was also a retaliation for my RO since he was stalking me. (Mine was a legal issue. His was civil.)

:crazy:

My friend is an atty and I called him up and we went to the preliminary and then got a hearing. The judge stopped the hearing in the middle of it and said he wasn't going to grant this. And then he turned to me and said, "I'm glad you fought this. I never side with the defendant. I prefer to err on the side of caution, but this man here just wasted my time."

My friend (who's a criminal defense atty) said he'd never seen one not granted and he was there for moral support, not because he thought I had a chance. And then bailiff came up to me afterword and said, "That guy [the ex] is one of the slickest I've seen. What does he do for a living?"

So, yeah. It happens.

Very glad to hear that your RO was not granted because it wasn't warranted. However I will take issue with the "yeah, it happens" statement. You are a woman and yes there is a HUGE difference. I would be willing to bet that you would have an almost impossible task of finding one case of a non-granted RO when the person asking for it was a woman and the recipient was a man.
I am not trying to be a sexist or belittle your victory. However I have been a victim of a vindictive ex wife, I have been a member of many Dads Divorce fourums and the stories are ALWAYS the same. False allegation, undeserved RO. I would say that it is just bitter jilted husbands if I hadn't lived it myself. The strange thing is the story is always the same. I was told by two attorneys in my town when fighting the RO that the local battered womens shelter advises women on exactly what to say to get a RO. They encourange women to get an RO even if no actually threat or violence happened. It has gotten so bad that there is (or was at the time) a lawsuit against the womans shelter, claiming that they were pressuring women to take RO's out on their spouses even though the was no reason to. They were basically telling women to lie and telling them what to say to ensure the RO was given.
I am all for a RO if it is for a warranted situation and is for the protection of someone who is actually in danger. However, handing RO's out like candy because a woman is vengful and pissed off does nothing but dilute the sympathy that is due the true victims. The man who recieves a false RO has it hanging around his neck for the rest of his life. The system is broken and needs to be fixed. No proof, no RO period.

Airman Doors, USAF
08-11-2011, 10:56 PM
If he has no contact of any kind with her, why does he care if there's a restraining order?

If he's in the military a restraining order is the kiss of death, thanks to the Lautenberg Amendment (http://en.wikipedia.org/wiki/Lautenberg_Amendment).

There are so many ways that the Lautenberg Amendment can kill a career that if you as a service member feel the accusation is unjustified and want to keep your career you better challenge all such accusations with everything you have. A simple restraining order is enough to do it. Plea-bargaining a false charge to make it go away is also enough. It has happened, and as long as that law is on the books it will continue to happen, albeit very rarely.

Rigamarole
08-11-2011, 11:14 PM
I had a civil RO filed on me from a nutty ex bf. He did it because he (presumably?) knew I was job searching AND it was one more way for him to be a dick. Yes, an outstanding RO hurts if your potential employer does a court search and school districts definitely do that. It was also a retaliation for my RO since he was stalking me. (Mine was a legal issue. His was civil.)

That brings up an interesting question - if someone has a restraining order against you, can you still file for a restraining order against them? What if you know they're going to file an RO, but you file one first? Do you win?

I'm sure the answer is: the woman wins no matter what (as you did in your case). But just curious.

Fotheringay-Phipps
08-12-2011, 08:43 AM
But with a RO, neither party can contact the other. I can't petition for a restraining order on Joe Bob and then give him a call next week.I'm pretty sure this is incorrect.

Not only can you call up Joe Bob with no consequence to yourself, but Joe Bob can get into serious trouble if he talks to you on a phone call that you initiated.

I believe some women actually do this deliberately, in divorce situations when they are trying to entrap their husbands. But sometimes prosecutors will prosecute violations of ROs even if the ostensible beneficiaries are unwilling. (Typical scenario involves a women who files a domestic violence complaint which triggers a RO, but then reconciles with her spouse. Nowadays the thinking is that such women need to be protected from their own bad judgment.)

That brings up an interesting question - if someone has a restraining order against you, can you still file for a restraining order against them? What if you know they're going to file an RO, but you file one first? Do you win?

I'm sure the answer is: the woman wins no matter what (as you did in your case). But just curious.Jason Kidd filed a restraining order against his wife and she responded by immediately filing one against him.

JoelUpchurch
08-12-2011, 10:23 AM
made naasty posts about her on blogs and message boards populated by real and potential clients as well as harassing her in person.

I don't quite follow this part. What is to stop someone who got bad feedback on ebay from taking out a restraining order?

I also wonder if there is any data that restraining orders actually deter any violence? Frankly the guys I've seen that need restraining orders are probably not going to care or the RO might actually set them off.

Elendil's Heir
08-12-2011, 10:43 AM
ROs really can make a difference. A nutcase who is determined to bother someone else might not be deterred, but when the cops are called he (or she) is far more likely to be picked up and taken into custody than if no RO was on file. Violation of a RO can also lead to additional charges and/or being held in contempt of court.

I agree that, in some jurisdictions, ROs are probably granted too easily under the dictum "better safe than sorry." But there has to be some factual basis for granting one, and a RO which is imposed for no good reason at all is IME far more likely to then be lifted when the subject of it objects.

In Ohio, mutual ROs are disfavored because it tars victim and offender with the same brush. The victim may (but would be very unwise to) contact the offender even after the RO is granted. But the offender cannot do the same - it is the court's order, not the victim's. Of course, "She keeps calling me" is information the offender is going to want to provide to the court at his next hearing.

Prosecutors often do, as Fotheringay-Phipps said, proceed with cases even after the complaining witness/victim has changed her mind, as those in abusive relationships often do forgive their attacker and want to back out of the case. I've seen it happen many times. But by involving the police and the prosecutor, the CW/V has made the case a matter for the courts, which seek to uphold the law and preserve the peace even if the person who got the ball rolling has since gotten cold feet.

hajario
08-12-2011, 10:57 AM
I don't quite follow this part. What is to stop someone who got bad feedback on ebay from taking out a restraining order?

Nothing. It probably wouldn't be granted though.

JoelUpchurch
08-12-2011, 11:22 AM
http://www.8newsnow.com/story/648610/do-restraining-orders-stop-domestic-violence

What I find interesting was the last line:

A new study found other holes in the restraining order process, too. A sampling of court hearings in Nevada found that only 40 percent of TPOs that are granted in the state actually get served because deputies can't find accused batterers. If the orders aren't served, they can't be violated. The study was conducted by the Nevada Network Against Domestic Violence, in cooperation with the state attorney general's office and the Nevada Supreme Court.

I find it kind of amazing that they can't find 60% of these guys to serve them with the TPO.

Really Not All That Bright
08-12-2011, 11:46 AM
The federal statute jtgain cited is violated by possession alone. U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001). The statute was deemed to be constitutional in the same case.
Back to the question in the title... "can you appeal a restraining order?" The answer is yes. Typically, the process works like this. The applicant asks for a temporary restraining order, which is usually granted with minimal burden of proof. The judge will set a hearing, within a week or two, at which point he'll ask for more detail and the subject of the restraining order has a chance to challenge it.

I'm inferring from the OP's description that this is what happened, and that a year later the OP's friend went to court for a hearing about whether or not the RO should be extended. If that's the case, then he's already had two opportunities to appeal the restraining order. If he didn't attend these hearings, or did so without an attorney, then he's not likely to have much success.

I can't speak to specific state laws, but I would imagine that one can challenge a RO at any time. Just because a judge issued an order of protection for a year doesn't mean he has to wait a year to challenge it.
That's not an appeal. Appeals are heard by a new (almost invariably higher) court. You are talking about something which is, in effect, a rehearing.

There are two kinds of things that are typically referred to as restraining orders. One is a temporary restraining order, which are granted on an emergency basis and often without notice, pending a full hearing.

The gentleman discussed in the OP has progressed beyond that point; his SO has obtained a permanent injunction, which does require a full hearing.

Domestic injunctions are final orders, and can be appealed like any other final order. Temporary restraining orders are non-final, but can be "appealed" via a writ of mandamus. However, since they are typically granted on a short term basis, it's likely that the temporary order will have been dissolved (or replaced with a permanent injunction) by the time the appeals court gets around to issuing the writ.

ETA: the standard for appeal of such an injunction would be abuse of discretion, which is a very high bar to meet.

obbn
08-12-2011, 03:07 PM
I don't quite follow this part. What is to stop someone who got bad feedback on ebay from taking out a restraining order?

I also wonder if there is any data that restraining orders actually deter any violence? Frankly the guys I've seen that need restraining orders are probably not going to care or the RO might actually set them off.

Joel you are right on target there. I think the main problem with RO's is that they only will stop law abiding citizens that for the most part intend to do no harm anyways.
However, for the sake of argument say a boyfriend or husband want to kill his wife. He has planned and pre-meditated this murder and is intent on doing it. Does anyone really think the threat of violating an RO is going to mean anything at all to someone who is determined to commit murder in the first? He faces either a life sentence or the death penalty. What are they going to do to him? Tack on a few extra years for vioiation of the RO?
I think you hit on a great point that an RO could possibly send someone over the edge. But the biggest problem I see is that it gives women the illusion of being safe. The RO isn't a bodygaurd, but for some reason women who have them in place think it protects them. My thought is (unpractical I know) if the courts are so concerned for the safety of the person taking out the RO then assign 24 hour police protection to them. If it is that serious, then we can't be too careful can we.

I will stick by my previous statements that many many RO's are taken out by vengful soon to be ex's as a stategy move in a divorce. If you need one, get one and buy a gun at the same time to protect yourself, because that piece of paper isn't going to do it, however if you don't need one grow up and don't try to destroy a guys life because you can.

Max Torque
08-12-2011, 03:22 PM
I don't quite follow this part. What is to stop someone who got bad feedback on ebay from taking out a restraining order?
I can only speak for my state, which is Texas, but: the applicant and respondent need more of a relationship than that. Protective orders (which is what we call them here; a "restraining order" normally is something you'd get to keep another person from damaging or destroying your property) require a relationship between the applicant and respondent. That means family by blood or marriage, living in the same household, parents of the same child, or dating. Just a couple of months ago, the legislature passed a "new boyfriend" provision that allows a person to apply for a protective order if they're being threatened/harassed/attacked by the ex-spouse or ex-boyfriend of the person they're currently dating. If that family-type relationship isn't there, though, the court can't issue a protective order, with one exception: there are special provisions that allow victims of sexual assault to get POs against their attackers regardless of the relationship.

Also, to issue the order, the court has to make a specific finding that "family violence has occurred and is likely to occur in the future if a protective order is not issued." The definition of "family violence" does include threats and harassment, so it's not limited to physical violence, but still, if you're just worried that he might do something, but there's no history of him actually doing anything, the court can't issue the order.

But with a RO, neither party can contact the other. I can't petition for a restraining order on Joe Bob and then give him a call next week.
Not entirely true. It'd be impossible for divorced couples to exchange the kids for visitation if they couldn't contact each other and coordinate, so the courts try to be sensible about such things. If it's necessary, there's the option of not allowing communication with the protected person at all except through her attorney, but if they still want to communicate, the provision is changed to "shall not communicate with Person X in a threatening or harassing manner." In truth, that just means that if they make a threat or start harassing the protected person, they'll have two charges against them instead of just one.

Fotheringay-Phipps
08-12-2011, 03:24 PM
Joel you are right on target there. I think the main problem with RO's is that they only will stop law abiding citizens that for the most part intend to do no harm anyways.
However, for the sake of argument say a boyfriend or husband want to kill his wife. He has planned and pre-meditated this murder and is intent on doing it. Does anyone really think the threat of violating an RO is going to mean anything at all to someone who is determined to commit murder in the first? He faces either a life sentence or the death penalty. What are they going to do to him? Tack on a few extra years for vioiation of the RO?I don't agree with this.

You're hypothesizing a case in which a guy is planning and premeditating killing his wife. But what about unplanned and unpremeditated violence? Let's say the guy isn't planning anything, but has a very bad temper and a predilection for violence when angry and/or drunk. By separating him from his wife the RO prevents the type of situation that is likely to provoke violence from arising.

In addition, a lot of guys who are out to kill their wives intend to get away with it. Anyone with a RO on him knows that there is no doubt that he'll be the first suspect. So it might work even in such cases.

So I think most likely they are effective, to some extent.

But I also think there are a lot of other things that would be effective too. Suppose we lock up anyone who is accused of any sort of crime. That would be effective, but we don't do it because locking people up is a severe measure in its own right, and we don't inflict harm on some people just because it's likely to be effective in reducing the harm to others.

So too, I think the effectiveness of ROs needs to be balanced against the very real harm that they do to the subjects of these orders.

Fotheringay-Phipps
08-12-2011, 03:27 PM
I can only speak for my state, which is Texas, but: the applicant and respondent need more of a relationship than that.Doesn't seem to be universally true.

It's well known that a woman got a TRO against Dave Letterman based on her assertion that he was harassing her via subliminal messages on his show. (The judge said his policy was to issue TROs to anyone who filled out the form correctly, but at any rate, DL obviously had no relationship with this woman.)

obbn
08-12-2011, 04:09 PM
I don't agree with this.

You're hypothesizing a case in which a guy is planning and premeditating killing his wife. But what about unplanned and unpremeditated violence? Let's say the guy isn't planning anything, but has a very bad temper and a predilection for violence when angry and/or drunk. By separating him from his wife the RO prevents the type of situation that is likely to provoke violence from arising.

In addition, a lot of guys who are out to kill their wives intend to get away with it. Anyone with a RO on him knows that there is no doubt that he'll be the first suspect. So it might work even in such cases.

So I think most likely they are effective, to some extent.

But I also think there are a lot of other things that would be effective too. Suppose we lock up anyone who is accused of any sort of crime. That would be effective, but we don't do it because locking people up is a severe measure in its own right, and we don't inflict harm on some people just because it's likely to be effective in reducing the harm to others.

So too, I think the effectiveness of ROs needs to be balanced against the very real harm that they do to the subjects of these orders.


Okay, I don't disagree with your post, but I have to stand on the point that an RO isn't going to protect anyone. If someone is willing to hurt you, then the penalty of violating an RO is meaningless to the, because the act they are going to commit is so much more severe than the violation of the RO.
I truly believe that if a woman (or man if that is the case) is scared enough to think that their life is in danger they should take every appropriate step to protect themselves. That might include an RO, but I believe a firearm would be a more effective way to keep yourself safe. A firearm has been proven 100% more effective than waving a court document at your assaliant.
Understand that I am not trying to be combative. I just think the whole RO thing is a farce that penalizes those that are falsely accused and offers zero protection to those who need it. It is nothing more than a feel good measure.
You are correct that it would be very effective to lock people up that are just accused and not proven guilty. I will agree to your offer if you agree that if the accused is innocent and the accusation are false, that the person who made those accusation serves a jail term equal to that which the accused would have faced if the allegations are true.

Claire Beauchamp
08-12-2011, 07:13 PM
Okay, I don't disagree with your post, but I have to stand on the point that an RO isn't going to protect anyone. If someone is willing to hurt you, then the penalty of violating an RO is meaningless to the, because the act they are going to commit is so much more severe than the violation of the RO.
I truly believe that if a woman (or man if that is the case) is scared enough to think that their life is in danger they should take every appropriate step to protect themselves. blah blah blah

Here's a case I'm living right now. BF has an ex who cheated on him, insisted on a divorce, and is now sort of trying to get him back. They have a kid so he works hard to remain on cordial terms. She has random attacks of violence, though, destroying expensive electronics, trying to barge into his house when she thinks he's entertaining a girlfriend (which he wasn't), shoving him around, screaming, etc. She just goes batshit sometimes. Has she bruised him? Yes. Is he afraid she's going to seriously injure or kill him? No. She's stalking him a little. He's worried about ME, he's just tired of the drama and never knowing when she's going to go off and destroy something or whatever. An RO would get her attention, and at least keep her away from the house and stop her following him. And, if she starts bothering me, ditto for me.

And as a side note -- yeah, there are plenty of vindictive women who would take out an RO just to fuck with her ex. But, I think a judge erring on the side of caution and taking, "I'm just scared of him," as a reason, or at least allowing simple harassment over physical violence to be a reason, is OK. Men don't understand how sometimes a woman can be genuinely afraid of men or a man. We have to be constantly on guard, because you do never know when that nice guy will turn into something not so nice. Listening to your instincts may damn a few innocent men, but better that than ignoring them and being sorry.

UltraVires
08-12-2011, 07:56 PM
But, I think a judge erring on the side of caution and taking, "I'm just scared of him," as a reason, or at least allowing simple harassment over physical violence to be a reason, is OK. Men don't understand how sometimes a woman can be genuinely afraid of men or a man. We have to be constantly on guard, because you do never know when that nice guy will turn into something not so nice. Listening to your instincts may damn a few innocent men, but better that than ignoring them and being sorry.

America at it's best. Better that ten innocent men get punished than a single guilty one walk free.


Er..wait.

UltraVires
08-12-2011, 07:59 PM
I can only speak for my state, which is Texas, but: the applicant and respondent need more of a relationship than that.

I don't have it in front of me, but the law in West Virginia tries to do this, but it is written so broadly that a college roommate from 30 years ago, or a woman you had a one night stand with at a bar in the Dominican Republic in 1984 are considered "family members" for the purposes of domestic violence laws.

JoelUpchurch
08-12-2011, 08:51 PM
I can only speak for my state, which is Texas, but: the applicant and respondent need more of a relationship than that. Protective orders (which is what we call them here; a "restraining order" normally is something you'd get to keep another person from damaging or destroying your property) require a relationship between the applicant and respondent. That means family by blood or marriage, living in the same household, parents of the same child, or dating. Just a couple of months ago, the legislature passed a "new boyfriend" provision that allows a person to apply for a protective order if they're being threatened/harassed/attacked by the ex-spouse or ex-boyfriend of the person they're currently dating. If that family-type relationship isn't there, though, the court can't issue a protective order, with one exception: there are special provisions that allow victims of sexual assault to get POs against their attackers regardless of the relationship.


Apparently, in California, there is a Civil Harassment Restraining Order, which can be used on almost anybody.

http://en.wikipedia.org/wiki/Civil_Harassment_Restraining_Order#cite_note-7

Actually the article had some good links on restraining orders in general and whether they are effective in preventing violence.

obbn
08-12-2011, 08:55 PM
But, I think a judge erring on the side of caution and taking, "I'm just scared of him," as a reason, or at least allowing simple harassment over physical violence to be a reason, is OK.

Well, I certianly respect you right to have an opinion, but have you thought of the consequences of a false RO has on a person? When my ex got one on me there was NO violence of any kind. It was put in place for two reasons:

1: To get me out of the house so she could move her boyfriend in

2: To give her exclusive access to our bank accounts, saving accounts, retierment funds etc. Which she cleaned out, leaving me absolutely no recourse as we weren't divorced yet so because they were in a joint account she could legally do so.

3: To better position herself in the upcoming divorce. Looks good in court when you can claim your divorce is because your soon to be ex is a danger to you.

Because of her false RO everytime I apply for a job I have to explain to a new potential employer that I did nothing wrong and hope that he believes me. I have to sweat it out everytime there is a background check done when I want to volunteer at my children's school or be a leader in my Boy Scout troop. She lied as a stratigic move during a divorce. Where are the penalties for her? Is it okay that my reputation is trashed?

I feel for your situation and if his Nut Job is attacking him and leaving bruises, destroying property as you say then the correct form of action is not an RO, but charges for battery, criminal trespass and destruction of private property. The situation you have described shows a legitimate reason for an RO, the problem I have is not using an RO for a legitimate reason. It is the use of one for the intent of causing problems for someone, just because you can.

I am well aware that a woman can be scared of a man. If you think in anyway that I am condoning violence against women you are way off the mark. The piont I made is the if you are in true physical danger and you think that a RO will protect you, you live an in fantasy world and that mistaken sense of protection might end up getting you killed. If someone is intent on hurting you a piece of paper telling them to stay 100 yards from you isn't going to do anything. Women, for your own protection, use your heads. An RO might not be a bad idea, but don't let your defense down and think that just because you have one you are now behind some shield and the person you are afraid of can't hurt you.

To sum up, I have no problem with anyone in actuall danger getting an RO provided they realize that it by itself will not protect them from danger. It will help document the problem, but certianly won't solve it. I do have a big probem with RO's being used to posturize during a divorce, used as a tool of domestic terror to inflict hardship on an innocent person. Used just because they can be.

Claire Beauchamp
08-12-2011, 09:07 PM
America at it's best. Better that ten innocent men get punished than a single guilty one walk free.


Er..wait.

An RO isn't a punishment. It's not a conviction of a crime, it's not even an accusation of a crime. It is a directive that Person X leave Person Y the hell alone.

I guess you would say that "better one person is killed or prevented from living their lives in peace than have ten innocent people incorrectly kept at bay.


Well, I certianly respect you right to have an opinion, but have you thought of the consequences of a false RO has on a person? When my ex got one on me there was NO violence of any kind.

Did you miss the first part of the paragraph that you pulled a quote from? Yes, there are people who use an RO incorrectly, and perhaps judges who pass them out too freely. But again, when something is he said / she said (or whatever genders are in play), would you rather a judge deny an RO when there was really a need? I'm sorry your ex played this on you and you have worked up quite a head of indignation and anger about this. Yeah, OK, your case is a case of an incorrect ruling. People are shits and judges are fallible. Does that mean that (a) men in general are this huge persecuted class that should never ever have an RO unless they've caused bleeding and broken bones, or that (b) the whole idea of an RO should be trashed? No.

obbn
08-12-2011, 09:10 PM
Men don't understand how sometimes a woman can be genuinely afraid of men or a man. We have to be constantly on guard, because you do never know when that nice guy will turn into something not so nice. Listening to your instincts may damn a few innocent men, but better that than ignoring them and being sorry.

I apologize for not addressing this part of your post in my reply. Let me start by saying with all due respect that you sound like a self absorbed spoiled princess with that comment. I think that your opinion would change dramatically if you happen to find yourself as one of the few innocents.
Also, how about that wonderful girl you know turns into a complete and total vindictive nut job? Or does it only work when men are the bad ones? Do you really believe in what you are saying here?
I suppose in your opinion that it is okay to apply the law so haphazardly that if 20 or 30 men languish in prison for 1/2 their lives on false charges that it is justified as long as number 31 is really guilty. Or how about anyone who is ever charged with murder we just skip the trial and execute them. There might be a pile of innocent bodies lying all over the place, but in your world that is okay because surly one or two of them must be guilty.
I would love to continue this reply, but I get the feeling that no amount of logic will change your opinion. You have a victim mentallity because of your gender and because of people like you innocent people have to pay a price. But since that price isn't being paid by you, I guess it is okay then.

Claire Beauchamp
08-12-2011, 09:13 PM
oh, and ...

I feel for your situation and if his Nut Job is attacking him and leaving bruises, destroying property as you say then the correct form of action is not an RO, but charges for battery, criminal trespass and destruction of private property. The situation you have described shows a legitimate reason for an RO, the problem I have is not using an RO for a legitimate reason. It is the use of one for the intent of causing problems for someone, just because you can.

Why not try an RO first? Again, it's not a sentence, a conviction, an arrest, an indictment, an accusation. It's a warning and a line in the sand. It may cause her problems but less than swearing out a warrant on her. It's about levels of appropriateness.

....

To sum up, I have no problem with anyone in actuall danger getting an RO provided they realize that it by itself will not protect them from danger. It will help document the problem, but certianly won't solve it. I do have a big probem with RO's being used to posturize during a divorce, used as a tool of domestic terror to inflict hardship on an innocent person. Used just because they can be.

And again, not all ROs are about imminent serious physical danger. Y'all are arguing worst-case extremes of the maniac murder-suicide planner. Not everyone who deserves an RO will ignore it. If it works with those less-than-worse-case scenarios, then it's worthwhile.

UltraVires
08-12-2011, 09:38 PM
An RO isn't a punishment. It's not a conviction of a crime, it's not even an accusation of a crime. It is a directive that Person X leave Person Y the hell alone.



As was mentioned upthread, it does contain a punishment: A man is not allowed to possess firearms or ammunition when he is subject to a restraining order. Anecdote alert: Deer hunting is popular here. I've heard from a local magistrate that RO applications increase three-fold the weekend before deer season. GF gets mad at BF, she'll show him. No deer hunting this year!

No punishment? What about the man who applies for his dream job, but the HR department sees an active or former RO on his record. Do you think they look at that and say that is was "no conviction, no accusation, just a directive"? Of course not. They will pass him over.

And it is certainly SUPPOSED to be an accusation of a crime. You are going into court and testifying that he has placed you in REASONABLE fear of bodily injury. That's the legal standard. If a woman goes into court and does not believe this, she is committing perjury. Not, he pissed you off. Not he's banging another chick. Reasonable fear of injury. Would you support prosecution for women who abuse the system? I checked with the prosecutor; the number of perjury INVESTIGATIONS in RO cases last year: 0. Since the law was enacted? 0.

It's turned into a "fuck you" card for a scorned woman to play. It by no means leaves a man unscathed. If he has children, he can't call to talk about parenting concerns. He can't drop off his kids to their mother without a third party being present. How do you think his kids feel about him after that?

For any of this to happen, a man certain should have the basic rights that any other civil defendant has in society: proof beyond a preponderance of the evidence.

obbn
08-12-2011, 09:38 PM
I guess you would say that "better one person is killed or prevented from living their lives in peace than have ten innocent people incorrectly kept at bay.

Well Claire, you never cease to amaze. Let's take your logic to the next step. I guess you would say better people put to death than to have one guilty person go free.
Doesn't sound so perfect now does it. I can't believe that you can actually sit here and try to convice us that because there is a guilty person out there that it doesn't matter how many innocent lives are damged or ruined. Like I said in my
post I am positive that if you were one of the innocents who had her life inconvienenced you would have a problem with it. And yes, I said inconvienenced not ruined because something tells me that the smallest slight against you would send you over the top.


Did you miss the first part of the paragraph that you pulled a quote from? Yes, there are people who use an RO incorrectly, and perhaps judges who pass them out too freely. But again, when something is he said / she said (or whatever genders are in play), would you rather a judge deny an RO when there was really a need? I'm sorry your ex played this on you and you have worked up quite a head of indignation and anger about this. Yeah, OK, your case is a case of an incorrect ruling. People are shits and judges are fallible. Does that mean that (a) men in general are this huge persecuted class that should never ever have an RO unless they've caused bleeding and broken bones, or that (b) the whole idea of an RO should be trashed? No.

I didn't miss anything, I just have a problem that you think it is okay that any woman should be able to file a RO for any reason, wether it is legitimate or not. A RO can cause huge problems for a person that doesn't deserve one. And for you to say that it is okay because someone else might have a problem is insane. Innocent people have had their lives disrupted and face years of problems because there is a mindset in this country that men are bad, women are good.

Please show me where in any of my post that I have advocated and justified "bleeding and broken bones". And show me where I have said that we should "trash" the whole idea of using RO's. You can't because I have specifically said that there are legitimate uses for RO's. Once again the point I was making that a blanket statement of "I am scared of him" should not be grounds to get an RO. It leaves too many avenues for abuse. PROVE why an RO should be granted. When my ex got in court and admitted I have NEVER done a single thing to threathen or hurt her but still got an RO is a travesty of my Civil Rights. Civil Rights do mean something to you, don't they? She admitted that I didn't do one thing to her in any way shape or form but was able to get an RO because she was able to mouth the words "I am scared of him". You are damn right I am angry about this and I am sure you would be too if you were on the recieving end.
Also, I have also advocated that any woman that finds herself in a situation where she thinks her physical well being is in danger to take proactive steps to protect herself and not rely on the warm and fuzzy feeling of a piece of paper. Please tell me how that makes me against women and that makes me a supporter of men abusing women? If a man abuses a woman then he needs to go to jail and pay the price. If it can be shown that a man has made a threat or has physically threatened a woman then there should be a system in place to deal with the problem. But to lower the bar so far that a simple statement with zero proof is enough to mark a man for the rest of his life is taking it way to far. And please don't tell me that a RO is nothing because it isn't a conviction. It will follow you and it will cause numerous problem and issues down the road. At the least it causes undo embarassment and at the worst in can prevent employment. If you did things that warranted a RO than you deserves the problems that come with that, but don't you dare sit there and tell me that if a man hasn't done anything he should just deal with the problems that RO is going to create in his life because the ends justify the means.

obbn
08-12-2011, 11:10 PM
[QUOTE=Claire Beauchamp;14133262 Did you miss the first part of the paragraph that you pulled a quote from? Yes, there are people who use an RO incorrectly, and perhaps judges who pass them out too freely. But again, when something is he said / she said (or whatever genders are in play), would you rather a judge deny an RO when there was really a need? I'm sorry your ex played this on you and you have worked up quite a head of indignation and anger about this. Yeah, OK, your case is a case of an incorrect ruling. People are shits and judges are fallible. Does that mean that (a) men in general are this huge persecuted class that should never ever have an RO unless they've caused bleeding and broken bones, or that (b) the whole idea of an RO should be trashed? No.[/QUOTE]

Well, here I am again after I promised myself I was done for the night. However your POV has disturbed me so much I have to revisit the subject with a thought that just came to me.

First, in the above quote you admit that there are people who use RO's incorrectly yet you don't see to really have a problem with this. You go on to justify these actions by saying that because some have a need for them, others should suffer. It really disturbs me that there are people out there that think like this. You are so focused on the issue that collateral damage doesn't matter to you. But that isn't why I am writing again. It is to share a story with you:

When my ex requested the RO on me I hired an attorney to fight it because I was innoccent of all accusations and I was going to defend my good name. My attorney told me from the outset that my chance of winning this and getting the RO request denied was almost zero. It would cost me a fortune and he would do his best. He then went on to tell me about the battered womens shelter I mentioned upthread that was being sued at the time for convincing women to get RO's on their husbands/boyfriends without any evidence or reason to have one.
Anyways, when we were in court on the hearing for this RO there was a woman standing in the back row talking to my ex that I had never seen before. I asked my attorney who this woman was and he told me "she is a representative from the local women's shelter, probably there for advice and support". This shocked me because I hadn't threatened or hit my ex so it really confused me why there would be any reason for a rep from the shelter to be there. I mean women shelters are there to help women who have been battered and abused right? Not someone who has never been either, so why was she there.
Well, as the case went on I occasionally looked over at this woman and watched her reactions to the testimony. When my ex got up on the stand her expression was one of confidence. When I got up on the stand to tell my side of the story her expression was one of digust. When my attorney questioned my ex and got her to admit that I have done absolutely nothing to her, this womans expresion was literally anger. All the while I am wondering why in the world this woman had all this hatred towards me. She certainly never met me or knew anything about me except what my soon to be ex wife told her. There was no interest from her in the testimony. No curiosity as to wether or not an RO was justified. She was out for blood and that blood was mine. I was puzzled, why? I just couldn't understand it.
Then it happend, the judge granted the RO. Of course I was confused. How could the judge reach this conclusion after the testomony and the evidence presented? It didn't make any sense. It is okay I told myself, my attorney said I had not much of a chance to win this, this outcome was expected.
Then I look over at the lady from the shelter. She is hugging my wife and acting like she had just won the Super Bowl or something. Then it hit me, it all came into focus. This woman didn't care about the evidence. It made no difference to her wether or not my wife was telling the truth. The only thing important was that another man was shown that women were in control and they had the backing of the judicial system. They could use the courts as an enforcer.
As we left the court room I kept playing in my mind over and over how overwhelming the evidence was that I was no danger to anyone, certainly not my wife or children but how that didn't matter. What also bothered me was this woman whom I never met nor had even said so much as an unkind word to was so intent on seeing me persecuted. Why? I thought logically about it and then it came to me. This woman was not what we would call attractive. She was very overweight and wasn't blessed with anything that would be remotely attractive to the opposite sex. That didn't matter to me, but I realized that it mattered to her. I realized that more than likely she has been treated badly by men all her life. In high school she probably endured endless teasing about her weight, probably had few if any dates and was always the one going stag to the school dance. As adult life came around she didn't fare much better. It was obvious she had given up trying, for it was plain to see she didn't take care of herself and made no attempt to style her hair or dress nice.
But, she did have this. She had the power and ability to strike back at all of the men in her life that had teased her or ignored her. Now was her time. She could cause problems and heartache for the men, any men. It didn't matter who they were or if they had ever done anything to her. Her weapon was convincing other women to turn on the men they had and the ammunition was the RO's.
Now I know that those reading this will think that I am making this up and I assure you that I am not. This is exactly the picture that I got that day. I understood now why the shelter was being sued, I understood why this rep from the shelter took such an active role and interest in seeing an RO with my name on it. It wasn't really was personal, it was their MO. I just happen to be available as a target.
Sadly Claire, you remind me of this woman. Maybe not in looks, but certainly in attitude and purpose. Neither you or this woman cared if the RO that was about to placed upon me was justified. It didn't matter. There was some man, somewhere that was going to abuse or hurt a woman and if I had to suffer for that, well that is just the price of doing business.
The sad part is, men like myself who at one time actually donated money to organizations that helped battered women no longer care to offer support. Not because I don't care about the safety of women, but because I see that the unfotunate women who truly need help are being used to persecute innoccent men in the name of "better safe than sorry".
The reason Claire that this issue is so important to me, why I am vocal in my opinion and why I will take the time to write paragraph after paragraph isn't personal. My ordeal sucked, but it was mine and as a whole doesn't amount to squat to anyone but me. However after becoming active in the divorced dads online communities I started noticing others that were sharing stories similiar to mine. Not kinda like mine, but exactly like mine. So much in fact that it didn't seem like coincidence. No, it seemed more like a deliberite conspiracy.
People need to be aware of the price paid by those of us that have been falesly accused. As one of the posters above mentioned the zero investigations of perjury in the cases of RO's has to change. The government needs to send a message that it will not stand for the slander of good men because a woman wants to use an RO as a "fuck you card". Your argument might stand a chance if you would strongly denounce the women of this world who use the court system as a means of revenge. Until you do that you will always be viewed as the girl above, exploiting a good cause for her own means.

Gary Robson
08-13-2011, 02:52 PM
Claire Beauchamp, obbn, and jtgain: Remember you are in the General Questions forum, not Great Debates. Please limit this discussion to whether (and how) restraining orders can be appealed -- not to an argument over how and when they should be granted.

Feel free to start a new thread in GD if you'd like to debate the subject.

dba Fred
08-14-2011, 06:57 AM
In the state I was familiar with, there is the broad category of Protective Orders (POs), under which there are Orders of Protection (OPs) and Injunctions Against Harassment (IAHs). OPs are issued when there is/was a “family” relationship between the parties; IAHs are issued when the defendant is alleged to have committed more than 1 act of harassment in the last year.
The plaintiff files the paperwork for the PO and has an ex parte hearing before the Judge/Magistrate (ex parte: the defendant isn’t notified and isn’t present at the hearing). I couldn’t find an instance where a PO wasn’t ordered; after all only 1 side is presented and erring on the side of being safe not sorry is a good thing. If the Judge/Magistrate grants the PO, the defendant is served with a copy of the PO by an officer of the court. On the served PO is a notice of the defendant’s right to request a hearing on the matter. The state courts’ websites had much good information for the plaintiff about obtaining an PO as well as for the defendant about what was involved in being served one and the right to request a hearing.
Short answer: yes, a PO is appealable/hearingable.

Now my fun story because I like to tell it :)

I was a regular at a coffee shop and there was this waitress. We joked & kidded around and she’d insist on being my waitress but it went no farther than chatting outside on cigarette breaks or after her shift (I mention this to show that I wasn’t a customer she was being nice to because she had to, she chose to spend time with me when she didn’t have to). This goes on for maybe a year and I lend her some money - red flag!; no, nothing changes for 6 months.
Then we start seeing each other outside of the coffee shop and things heat up. Things are going along fine for maybe 5 months then 1 day I get a “Dear dba Fred/Dear John” email saying it’s over, doesn’t say why it’s over, just that it is but to feel free to call her if I wished to discuss it further. I take a few days (all the while continuing to go to the coffee shop but avoiding her station) to compose a reply saying if she gave me a reason, then there might be something to discuss. If she’d dumped me like an adult, I would have been unhappy but probably could have still been friends with her.
Word gets out around the coffee shop and people at a coffee shop love to talk (as do people everywhere), I didn’t have to ask any questions. I soon learned that a customer had bought her a used car, a few weeks later I learned they were engaged, a few weeks later she quit and went to work at another coffee shop. Because many of the friends and former coworkers were invited to or were going to be in her wedding, I was told where it was going to be, a city park and it only took a few minutes online to find the date & time of the wedding.
I let it be known to her friends and former coworkers that I knew the date & time & place and since it was a public park and I was a taxpayer and I wasn’t working that day … I guess word got back to her :D
To this day, I am the only person who knows for sure if I was at the park that day, some of the attendees think I was, a few think they saw me.
Here’s where it gets fun - the day after the wedding, I was served with an Injunction Against Harassment (AIH). It seems the Friday before her Monday wedding, she went to court and had the IAH issued but couldn’t get it served in time for it to be in effect at her wedding-I guess I was still on her mind :-)
I of course felt terribly wronged by this injustice, I hadn’t spoken to her since before her “Dear dba fred” email, I wasn’t stalking her or harassing her (I had been to her new place of employment twice but didn’t sit in her station & was a perfect customer). This was a call to arms! :mad: I did my research of the state law, got a CD and transcript of the hearing, and filed my Request for Hearing on the matter. (In my research I found all the traffic tickets she’d been issued, the repossession of her vehicle, her 1st marriage & divorce papers and the application for & issuance of her marriage license lots of stuff.)
I was granted a hearing; I printed out all the relevant documents and emails, had my gray suit dry-cleaned, polished my shoes & was at the courthouse an hour before the hearing. And … :eek:
She didn’t show up - it seems she’d neglected to notify the court of her new address. I was there & ready to proceed, she wasn’t, the IAH was dismissed. It gets better. A day or two later I’m at the original coffee shop, regaling an older full of piss and vinegar gal about my legal triumph, and I tell her that now I have to go to the other coffee shop. This gal looks me in the eye and says “I’ll go with you!” ;) So we make a date for a day when we know the waitress/plaintiff is working to go there and do so. We don’t sit in the plaintiff’s station, we cause no problems but know we are noticed.
It gets betterer :-) We go to leave, I’m paying the bill and I see the manager is on the phone. The manager follows us out and says “I’d like to speak to you” just as the police car pulls up. When Officer Friendly is 5 steps away, I pull the Notice of Dismissal of the IAP off my clipboard and hand it to him. Officer Friendly looks at the Notice and says to the manager “there’s no problem here.” The manager didn’t know what to do or say, the waitress/plaintiff had told him she had an IAH against me and it turns out she didn’t :smack:. I did get 86’d from the restaurant but didn’t have to worry that I’d be arrested for inadvertently being within 300 feet of her.
So the short answer after a long story is still yes, an Protective Order is appealable/hearingable, and sometimes the innocent party wins.

dba Fred
08-14-2011, 07:05 AM
Missed the edit: The marriage didn't last a year :D

ralph124c
08-14-2011, 08:21 AM
Well, it is my impression that a RO is something like a crime (but you cannot defend yourself).
Given the ease with which they are issued, I guess the message is: stay away from any woman who has filed these things.

dba Fred
08-14-2011, 08:27 AM
If only it were that easy :smack:
And if only they weren't mostly used properly.

Rilchiam
08-14-2011, 10:40 AM
Is your name Charlie, and did no one else know the waitress's name? Did you write a musical for her?

Really Not All That Bright
08-14-2011, 11:36 AM
Well, it is my impression that a RO is something like a crime (but you cannot defend yourself).
Given the ease with which they are issued, I guess the message is: stay away from any woman who has filed these things.
It's nothing like a crime. There's no adjudication of guilt and no punishment. The firearms issue is a problem with the federal law, not the RO procedure itself.

obbn
08-14-2011, 12:07 PM
It's nothing like a crime. There's no adjudication of guilt and no punishment. The firearms issue is a problem with the federal law, not the RO procedure itself.

In a crime, you are inoccent until proven guilty. With an RO you are guilty and will stay guilty until the woman whom you have pissed off decides that you have suffered enough*.

*disclaimer .. if you really did threaten or hurt the person seeking the RO, then you deserve what you get.

Really Not All That Bright
08-14-2011, 12:10 PM
For the purposes of a temporary restraining order, guilt is assumed. For the purposes of a permanent injunction, it is not.

obbn
08-14-2011, 12:20 PM
For the purposes of a temporary restraining order, guilt is assumed. For the purposes of a permanent injunction, it is not.

Agreed, but that doesn't make it right. I suppose that is okay if your Civil Rights don't temporaraly apply that it is okay. There has to be more proof than just an accusation to restirct someone and their ability to move about freely.
The thing is if the courts are going to presume you are guilty in the first example you give, then what would give any reasonable person the expectation that they will find them not guilty in the second? This point is relevent to the OP, how can you get a RO removed if the person who asked for it sticks by the accusation. Logic would reason that if you are found "not guilty" and the RO removed that the person who ask for it should be charged with perjury if not slander. If you did enough to justify a RO there so be no reason to remove it. If there is a reason to remove it it should have never been granted in the first place.

UltraVires
08-15-2011, 09:22 AM
For the purposes of a temporary restraining order, guilt is assumed. For the purposes of a permanent injunction, it is not.

Correct, but what establishes "guilt" is so slight as to make the issue meaningless. I would venture a guess that every poster in this thread has been "guilty" of an act of domestic violence that would warrant an RO.

Criminal guilt is irrelevant. Anecdote: My brother in law was in a fight with his live in girlfriend. She slapped the hell out of him and he was yelling at her telling her to stop. Cops show up. His face is bloodied and battered. She has red marks on her wrists consistent with him grabbing them in self-defense. SHE goes to jail and he does not.

The next day, she is released on her own recognizance and goes to the family court and is granted a TRO against HIM. (Did you read the part where she was arrested and charged with domestic battery and he was not?) He had to move out of the house and she was appointed a "victim counselor" by the local man-hater group.

They eventually made up (since broken up) and everything was dropped. After it happened, I called the local man hater group and asked them why they would represent someone accused of DV against someone who wasn't. The response was that their representation was not contingent on the criminal system, but they evaluated the cases as they came in.

I asked if the evidence showed that the person who came in was lying, would they drop the case and represent the other party? They said, "Once a client, always a client." I asked if that was an absolute, and they said "yes." I asked what would happen if five witnesses said that their client was the abuser and that the other party did nothing wrong. "Once a client, always a client." I asked if that meant their organization was actually representing some batterers, the very people they were against. She simply repeated, "Once a client, always a client."

After about 20 minutes of this ping pong game, she actually admitted that she didn't think that women could be batterers. Even if a woman hit a man it wasn't the same because of the size differential, and that "she probably had a good reason to do so."

Oops. Had summary typed. Remembered this was GQ. Draw your own conclusions.

UltraVires
08-15-2011, 09:40 AM
It's nothing like a crime. There's no adjudication of guilt and no punishment. The firearms issue is a problem with the federal law, not the RO procedure itself.

Disagree. Keeping it GQ, it is certainly a punishment. Your girlfriend can live at your house, get an RO against you, and force you out of your own home. She can move her new boyfriend into your home and screw in every room of your house. They can turn the heat up to 90 degrees or the A/C down to 60 degrees, and guess what? You are paying the utility bills by court order!

Meanwhile, you are imposing on friends or family by living with them, or staying at a local cheap motel at your own expense. You have a suitcase full of clothes and toiletries that you were allowed to pack with a police officer standing over your shoulder. Feel like reading a book? Damn, that book is at the house, and her and the new BF are using it to clean the spooge off of the walls.

Were you drinking alcohol when the event in question happened? Welcome to court mandated AA or alcohol assessment! Go in and deny that you have a drinking problem. "All addicts refuse to admit they have a problem! More treatment for you!"

Deny that you battered her? All batterers deny that they are batters! Anger management class for you!

You think that it's not a punishment or doesn't make your life hell? Date the wrong woman and report back to me.

Polycarp
08-15-2011, 10:20 AM
In a crime, you are inoccent until proven guilty. With an RO you are guilty and will stay guilty until the woman whom you have pissed off decides that you have suffered enough*.

*disclaimer .. if you really did threaten or hurt the person seeking the RO, then you deserve what you get.

No. It's not criminal law, it's family law, and it operates on equity principles.

Let me set up a parallel. Twenty years ago you bought your home, which has a big beautiful shady back yard. Three healthy large old trees provide that shade; two are on your property, one on your neighbor's very near the lot line. That shaded yard was a major selling point for you. To induce you to buy it at a fair price, the previous owners got a letter from old Mr. Miller, who used to own the neighboring property, that guaranteed he wouldn't remove the tree that provides your shade. You think but don't know for sure that money changed hands to get that guarantee.

Time passed. Mr. Miller died; Mrs. Miller went into a nursing home, and their kids sold the property to the Funstons -- who now want to cut down the tree in order to put in a swimming pool. You brought up Mr. Miller's guarantee, and they effectively scoffed at it. So your lawyer goes to the judge, arguing that Mr. Miller's letter grants you an easement to the shade from that tree.

You're entitled to a temporary injunction, keeping the Funstons from cutting down the tree. Not because you're right on the merits of the case -- that hasn't been argued out between your lawyers before a judge yet. But because the tree once cut down cannot be restored -- so the status quo holds, the tree is left standing, until after the merits of the case are argued and ruled on. Note that the same would be true if it was your neighbors who had the shady yard and you who wanted to cut down the tree and put in the pool.

Likewise, a temporary restraining order doesn't "convict someone of domestic violence" -- it simply says to avoid contact until it's lifted. It;s an order to one person telling them to refrain from something because another party has complained that he/she was violating the other party's rights, until the merits of that complaint can be addressed.

The judge does not yet know whether the man is an ogre and the woman rightfully fears for her health and safety, or whether he's a decent man and she a lying, manipulative bitch. What he does know is that a TRO will keep him from contacting her in either case, protecting her if it is the first and not being needed if it is the second -- just as he doesn't yet know if your claimed easement about the tree or the Funstons' right to use their own yard as they see fit will turn out to be the case. but stopping them from removing the tree until he can hear the case protects you in the first case and only delays them a bit in the second.

The analogy isn't perfect -- analogies rarely are. But it's close enough to show how it's not "automatic conviction."

Fotheringay-Phipps
08-15-2011, 10:47 AM
Likewise, a temporary restraining order doesn't "convict someone of domestic violence" -- it simply says to avoid contact until it's lifted. It;s an order to one person telling them to refrain from something because another party has complained that he/she was violating the other party's rights, until the merits of that complaint can be addressed.

The judge does not yet know whether the man is an ogre and the woman rightfully fears for her health and safety, or whether he's a decent man and she a lying, manipulative bitch. What he does know is that a TRO will keep him from contacting her in either case, protecting her if it is the first and not being needed if it is the second -- just as he doesn't yet know if your claimed easement about the tree or the Funstons' right to use their own yard as they see fit will turn out to be the case. but stopping them from removing the tree until he can hear the case protects you in the first case and only delays them a bit in the second.The analogy is worse than imperfect - it's fundamentally flawed in that your example maintains the status quo while a TRO significantly changes it.

If it were truly the case that the TRO did not operate on any presumption of guilt, then the subject wouldn't be the one ordered out of the home etc. etc.

The fact that this is so is because the petioner is presumed to be the victim and the subject of the TRO is assumed to be a criminal. True, this assumption is only supposed to be in place until the full hearing for a permanent RO, but there's no doubt that even a TRO is based on this presumption, as above.

Fubaya
08-15-2011, 11:16 AM
Disagree. Keeping it GQ, it is certainly a punishment. Your girlfriend can live at your house, get an RO against you, and force you out of your own home. She can move her new boyfriend into your home and screw in every room of your house. They can turn the heat up to 90 degrees or the A/C down to 60 degrees, and guess what? You are paying the utility bills by court order!

I find it hard to believe that a guest could take over your home this way. A wife who has her name on the mortgage, yes, but a girlfriend?

Wesley Clark
08-15-2011, 11:24 AM
Disagree. Keeping it GQ, it is certainly a punishment. Your girlfriend can live at your house, get an RO against you, and force you out of your own home. She can move her new boyfriend into your home and screw in every room of your house. They can turn the heat up to 90 degrees or the A/C down to 60 degrees, and guess what? You are paying the utility bills by court order!

Meanwhile, you are imposing on friends or family by living with them, or staying at a local cheap motel at your own expense. You have a suitcase full of clothes and toiletries that you were allowed to pack with a police officer standing over your shoulder. Feel like reading a book? Damn, that book is at the house, and her and the new BF are using it to clean the spooge off of the walls.

Were you drinking alcohol when the event in question happened? Welcome to court mandated AA or alcohol assessment! Go in and deny that you have a drinking problem. "All addicts refuse to admit they have a problem! More treatment for you!"

Deny that you battered her? All batterers deny that they are batters! Anger management class for you!

You think that it's not a punishment or doesn't make your life hell? Date the wrong woman and report back to me.

Vindictive women really seem to know how to play the androphobic legal system, and it does hurt people. Its too bad you can't always tell who is crazy or not.

Fotheringay-Phipps
08-15-2011, 11:32 AM
I find it hard to believe that a guest could take over your home this way. A wife who has her name on the mortgage, yes, but a girlfriend?I find it very easy to believe.

However, I think if that happened, the homeowner could subsequently evict the guest. (Although that might depend on family court rulings.) But in any event, I don't think the RO process recognizes this.

See: http://www.criminaldefenselawyer.com/resources/criminal-defense/defendants-rights/defense-restraining-orders

obbn
08-15-2011, 12:04 PM
Correct, but what establishes "guilt" is so slight as to make the issue meaningless. I would venture a guess that every poster in this thread has been "guilty" of an act of domestic violence that would warrant an RO.

Criminal guilt is irrelevant. Anecdote: My brother in law was in a fight with his live in girlfriend. She slapped the hell out of him and he was yelling at her telling her to stop. Cops show up. His face is bloodied and battered. She has red marks on her wrists consistent with him grabbing them in self-defense. SHE goes to jail and he does not.

The next day, she is released on her own recognizance and goes to the family court and is granted a TRO against HIM. (Did you read the part where she was arrested and charged with domestic battery and he was not?) He had to move out of the house and she was appointed a "victim counselor" by the local man-hater group.

They eventually made up (since broken up) and everything was dropped. After it happened, I called the local man hater group and asked them why they would represent someone accused of DV against someone who wasn't. The response was that their representation was not contingent on the criminal system, but they evaluated the cases as they came in.

I asked if the evidence showed that the person who came in was lying, would they drop the case and represent the other party? They said, "Once a client, always a client." I asked if that was an absolute, and they said "yes." I asked what would happen if five witnesses said that their client was the abuser and that the other party did nothing wrong. "Once a client, always a client." I asked if that meant their organization was actually representing some batterers, the very people they were against. She simply repeated, "Once a client, always a client."

After about 20 minutes of this ping pong game, she actually admitted that she didn't think that women could be batterers. Even if a woman hit a man it wasn't the same because of the size differential, and that "she probably had a good reason to do so."

Oops. Had summary typed. Remembered this was GQ. Draw your own conclusions.

Very interesting story and it backs up my claim in my post upthread that I believe that there is a conspiracy at work. The man-hater shelters as you so cleverly called them don't care one bit about DV. The only agenda they have is to hate men and to do everything they can possibly do to destroy their lives. It doesn't matter if they have to lie or trash a man's reputation. The only thing that matters is they are able to put another check matk on an RO.
This whole discussion started when the question was asked can you get a restraining order removed. I think, despite one successful story, it is clear that avoiding and RO or getting one removed does not matter on guilt or innoccence. It matters on the moral character of the woman (in most cases) that took the RO out. If she is willing to continue to lie, all the while encourage and assisted by groups like the above mentioned shelter there isn't a chance that it willbe removed.
Until the legal system in this country sends a clear message that it will not tolerate perjury and that men have the same rights as women it will never change. In the meantime, women shelters like the one I mentioned i nmy post and the one mentioned above will continue to justify the means while they destroy any good will and sympathy that people have for their work and victims.

obbn
08-15-2011, 12:19 PM
No. It's not criminal law, it's family law, and it operates on equity principles.

Let me set up a parallel. Twenty years ago you bought your home, which has a big beautiful shady back yard. Three healthy large old trees provide that shade; two are on your property, one on your neighbor's very near the lot line. That shaded yard was a major selling point for you. To induce you to buy it at a fair price, the previous owners got a letter from old Mr. Miller, who used to own the neighboring property, that guaranteed he wouldn't remove the tree that provides your shade. You think but don't know for sure that money changed hands to get that guarantee.

Time passed. Mr. Miller died; Mrs. Miller went into a nursing home, and their kids sold the property to the Funstons -- who now want to cut down the tree in order to put in a swimming pool. You brought up Mr. Miller's guarantee, and they effectively scoffed at it. So your lawyer goes to the judge, arguing that Mr. Miller's letter grants you an easement to the shade from that tree.

You're entitled to a temporary injunction, keeping the Funstons from cutting down the tree. Not because you're right on the merits of the case -- that hasn't been argued out between your lawyers before a judge yet. But because the tree once cut down cannot be restored -- so the status quo holds, the tree is left standing, until after the merits of the case are argued and ruled on. Note that the same would be true if it was your neighbors who had the shady yard and you who wanted to cut down the tree and put in the pool.

Likewise, a temporary restraining order doesn't "convict someone of domestic violence" -- it simply says to avoid contact until it's lifted. It;s an order to one person telling them to refrain from something because another party has complained that he/she was violating the other party's rights, until the merits of that complaint can be addressed.

The judge does not yet know whether the man is an ogre and the woman rightfully fears for her health and safety, or whether he's a decent man and she a lying, manipulative bitch. What he does know is that a TRO will keep him from contacting her in either case, protecting her if it is the first and not being needed if it is the second -- just as he doesn't yet know if your claimed easement about the tree or the Funstons' right to use their own yard as they see fit will turn out to be the case. but stopping them from removing the tree until he can hear the case protects you in the first case and only delays them a bit in the second.

The analogy isn't perfect -- analogies rarely are. But it's close enough to show how it's not "automatic conviction."



Sounds to me you are in the ends justifies the means crowd. You can say I wasn't "convicted", but I was not allowed to go to my home, I was not allowed to talk to my children. I watched a man move into my home, live with my children. I saw my bank accounts drained to zero, because this TRO gave her all access and me none. I saw neighbors that I had been friends with for years advert their eyes when they saw me. Because much like the judge that entered the RO, they only heard her side of this twisted story. I have faced the embarassment when for whatever reason a background check has to be run on me, for now I have to once again relive the whole thing and explain it to someone else.
I would argue that a person not "convicted" of a crime by definition is not supposed to suffer the penalties of that crime. A false RO immediately renders the recipent guilty in the eyes of the court and the eyes of the community. And when the RO is dropped because you have spent thousands and thousand of dollars for an attorney to help, where is the DA, the Judge, The Shelter helping you clear your name and procecuting the person who lied to get it?
I will stick by my statement that once an RO is granted it is impossible to get removed unless the person who placed it agrees to drop it. Usually this has to be done in a "deal". The person who got the RO and her attorney will use it as leverage in a divorce, "you give us this and we will drop the RO". But ends justify the mean, that gives the few posters in this thread all the divine reason to slander and destroy a man. Disgusting.

obbn
08-15-2011, 12:31 PM
Okay, I will leave for lunch with these final thoughts. I would hope that I can get an answer from the few of you here that are defending RO's no matter what. Keeping in mind the moderators warning on keeping the debate on the OP, here it goes:

I have asked this question before, but no one answered it. It gets right to the heart of the matter and if answered clarifies the true motive of those who want RO's wether there is proof or not. It should also go along way in answering the OP. It will certainly reveal the mindset of both sides of this argument.

If an RO is placed and there is a justified reason for it, why would the removal be justified? If you did something bad enough to warrant an RO, there should be no reason for it to be removed.

If you have an RO and succesfully make an argument to have it removed, doesn't it stand to reason that it never should have been granted in the first place? If it is removed, it means that you are not a threat to the person. How can you be a threat this week, but not next? And following "it should have never been granted in the first place", if it is found that an RO was not needed because the evidence used to get it was a lie (the ONLY way one could get an RO if it wasn't justified), then shouldn't that person be charged with perjury and/or slander?

The point I am making is the only people who would deserve the removal of an RO are the ones who should have never recieved on to begin with.

Fubaya
08-15-2011, 09:43 PM
If an RO is placed and there is a justified reason for it, why would the removal be justified?

ROs can be abused, but there are a lot of answers to that question. ROs just tell someone to stop what they're doing. The situation can change or what they're doing may become moot or be dealt with in other ways.

Here's a hypothetical. Going through a divorce, one party may show up at the house every day and start an argument over who gets the cat. They may be an MMA fighter and the woman is afraid he may get physical or they may be quadriplegic and unable to harm a fly, but verbal and emotional abuse are covered by domestic violence (domestic violence seems to be what this thread is about). Even if they're not verbally threatening to kill the person, there is a whole slew of verbal actions that are considered abusive, especially in front of kids. In either case, the female gets an RO to keep that from happening. It may go down as the big bad MMA fighter is a risk of being physically abusive or it may go down as the poor disabled fellow got screwed. Either way, the RO is a warranted domestic violence restraining order. Then, after the stress of the divorce, things usually calm down. Maybe the person who was starting the fight over the cat won it in the divorce and couldn't be happier so there's no reason for the RO anymore and it could actually get in the way.

Green Cymbeline
08-15-2011, 11:06 PM
Here's a recent story about a father unfairly slapped with a restraining order (http://www.fathersandfamilies.org/?p=18444) on a web site called Fathers and Families, which advocates for father's rights.

AK84
08-16-2011, 08:09 AM
Domestic injunctions are final orders, and can be appealed like any other final order. Temporary restraining orders are non-final, but can be "appealed" via a writ of mandamus. However, since they are typically granted on a short term basis, it's likely that the temporary order will have been dissolved (or replaced with a permanent injunction) by the time the appeals court gets around to issuing the writ.

ETA: the standard for appeal of such an injunction would be abuse of discretion, which is a very high bar to meet.

Writ of Certiorari surely.

Really Not All That Bright
08-16-2011, 09:00 AM
No. Certiorari is for appeals of final orders. A TRO is a non-final order and hence cannot be appealed; the challenging party petitions a higher court directly to direct the lower court to vacate its order.

AK84
08-16-2011, 09:06 AM
No. Certiorari is for appeals of final orders. A TRO is a non-final order and hence cannot be appealed; the challenging party petitions a higher court directly to direct the lower court to vacate its order.

A writ is not an appeal. Writ of Certiorari review the vires of the decision of the lower court or body and often times can only be applied if there is no other remedy. A Mandamus is a command to do something. Unless the US is very different.


The OP. Most Jurisdictions allow the part against whom an Temp Injunction has been passed to apply to the same court to vacate the order. So even if an order is passed, you can always attempt to have it vacated.

UltraVires
08-16-2011, 09:49 AM
To actually answer the OP (finally) it usually depends on the state as to what/where you have an appeal as a matter of right.

I can speak for West Virginia in that we have a State Supreme Court and below that Circuit Courts (WV does not have an intermediate appeals court). As you can imagine, the Circuit Court does not want to be bothered with minor things, so the legislature has created Family Courts and Magistrate Courts which are inferior to the Circuit Courts.

You get a TRO from the Magistrate Court, and a final hearing must be held withing 5 days before the Family Court.

In any final judgment (a TRO is not final as pointed out above) before a Family Court or a Magistrate Court, a person has an appeal as a matter of right, de novo (or a brand new trial on the facts) before the Circuit Court if they feel that they have been done wrong.

If they feel that the Circuit Court is then wrong, then you have a discretionary appeal to the State Supreme Court which would only hear it if there was a clear error on the part of the Circuit Court Judge.

In practice, though a Circuit Court judge is going to be very pissed if you don't have a good reason as they don't want to hear family matters and speeding tickets.

I believe that most states have similar automatic rights of appeal from these lower courts because the legislature realizes that judges of these lower courts aren't exactly, well, qualified to do much of anything.

But as was said above, the standard of proof is so low for an RO that a successful appeal is unlikely to say the least.

The only solution: Pay her cash to drop it, and get an attorney to negotiate as by the terms of the RO, you can't contact her directly.

Really Not All That Bright
08-16-2011, 10:15 AM
A writ is not an appeal. Writ of Certiorari review the vires of the decision of the lower court or body and often times can only be applied if there is no other remedy. A Mandamus is a command to do something. Unless the US is very different.
Did you read my post? As I spelled out pretty clearly, a non-final order cannot be appealed. Hence, the complaining party has no other remedy. The mandamus sought in this case is a command to vacate the temporary restraining order.

UltraVires
08-16-2011, 11:00 AM
Here's a hypothetical. Going through a divorce, one party may show up at the house every day and start an argument over who gets the cat. They may be an MMA fighter and the woman is afraid he may get physical or they may be quadriplegic and unable to harm a fly, but verbal and emotional abuse are covered by domestic violence (domestic violence seems to be what this thread is about). Even if they're not verbally threatening to kill the person, there is a whole slew of verbal actions that are considered abusive, especially in front of kids. In either case, the female gets an RO to keep that from happening.

There are other ways to prevent this apart from branding the man as a wife beater. First, when a couple goes through a divorce, there is typically an order for separate maintenance, or temporary support order. These usually outline who gets possession of what during the divorce proceedings. Usually the wife and kids get the house. If the man is coming over for any reason, she can legally bar him from the property like any homeowner can.

If the man comes over and commits a crime such as assault or battery, then the criminal justice system can respond just like if I were to come over to your house and threaten you with bodily harm.

This "verbal and emotional abuse" while favorites of the man hater lobby because of how vague they are, are not criminal offenses in any state, nor should they be. If they were, most posters in the BBQ Pit would be charged with a crime.

Sure, it is awful to do this in front of the kids, but if we were serious about that then every marriage should be supervised by big brother. And again, the woman has the right to enforce the separate maintenance agreement by barring him from the property.

And if we want to enforce a playground rule like they are 8 year olds, ("You stay on that side, and you stay on the other just so nothing happens") then why slap the man with a court order sending him to jail if he comes over, but leave the woman free to call him at any time? Just order them both to stay apart as part of the general agreement.

obbn
08-16-2011, 12:10 PM
ROs can be abused, but there are a lot of answers to that question. ROs just tell someone to stop what they're doing. The situation can change or what they're doing may become moot or be dealt with in other ways.

Here's a hypothetical. Going through a divorce, one party may show up at the house every day and start an argument over who gets the cat. They may be an MMA fighter and the woman is afraid he may get physical or they may be quadriplegic and unable to harm a fly, but verbal and emotional abuse are covered by domestic violence (domestic violence seems to be what this thread is about). Even if they're not verbally threatening to kill the person, there is a whole slew of verbal actions that are considered abusive, especially in front of kids. In either case, the female gets an RO to keep that from happening. It may go down as the big bad MMA fighter is a risk of being physically abusive or it may go down as the poor disabled fellow got screwed. Either way, the RO is a warranted domestic violence restraining order. Then, after the stress of the divorce, things usually calm down. Maybe the person who was starting the fight over the cat won it in the divorce and couldn't be happier so there's no reason for the RO anymore and it could actually get in the way.


Good point that I will conciede, which I hope proves that I am open minded even though I have a very strong opinion on this issue. I guess I will have to modify my thoughts a bit here.

I can certainly understand a RO being dropped after an extended period if the offending party has demonstrated that they are no longer a threat. In my example above, where I said that if an RO is dismissed, then chances are it should have never been granted was meant more in the context of one being dropped soon after being issued becuase the person with the RO fought it.

In my case, I did nothing to warrant an RO. The accusations were based on outright lies and there was zero proof. I fought the RO placed on me to defend my name and out of prinicpal. So, the point I was making is that if an RO is granted and then the person who has the RO against them hires and attorney and (for the sake of this example, lets say this happens within two weeks of the RO being granted) successfully fights and the RO is dropped it is my opinion that the RO should have never been granted in the first place.

Getting an RO dropped after it has been issued is nearly (but not always apparently as some of the other posters have said) impossible. Of course RO will be dismissed after a year if there has been no further incidents, but is that really relevant? By that time the damage has been done if the person is innoccent.

I have never said that RO shouldn't be used and that there aren't times a woman is in fear. However I will submit and stand by my statements that too many times RO's are a punitive tactic used by women to punish men and the courts, in the name of caution, encourage this. There is no penalty for a blantant false accusation and the harm done to the innoccent is overlooked.

obbn
08-16-2011, 12:28 PM
ROs just tell someone to stop what they're doing.

Sorry for the double reply to your post, but after re-reading it I think it is extreamly important to take issue with the statement above. While I will agree that an RO does tell someone to stop doing something it also does a lot more. It gives the person who requested the RO essentially unlimited power over the marital assests of a family. When my ex had the RO on me she did the following and I was forbiden by the courts to do anything to stop it:

1: She cleaned out our bank accounts, leaving me with zero money to live on.

2: I had recently broken my back at work and recieved One Hundred Thousand Dollars in a settlement from the company due to their neglegence in my injury. She also cleaned that account out too. One Hundred Thousand Dollars and every day I pay the price for that money with my injury. And no, she didn't have to give it back to me during the divorce. It was in a joint account and the court, via the RO, gave here the exclusive right to take that money.

3: She ran up and maxed out all of our credit cards and then closed any out that had any balance left on them. Who do you think they called when payment came due? They were joint, didn't matter if she ran them up.

4: I had a car in the garage that I was restoring as a hobby. The car was not titled yet and 99% complete at that time. My friend and I spent about 2 years bringing this car back to life to essentially a show car restoration. She took the title to the DMV and had it titled in her name. Because of this RO an expensive asset became hers alone.

5: She moved her boyfriend in the house the day after the RO was granted. Do you think the courts were concerned that he was in my house living with my children? Do you think they were concerened about the mental confusion my children experienced from seeing thier father kicked out one day and a new man moved in the next?

6: And the great news is I got to finace it all. Guess who was still responsible for the electric, cable, water, etc....??? Why didn't I just quit paying? Because the terms of the RO forbid me to make any changes in reference to housing and it's assosiated accounts. They were all in my name. I better find the money to pay them, because if I don't and they get cut off I go to jail. But wait? Remember paragraph's one and two where she cleaned out the accounts and left me with zero access to any funds? Where am I going to get the money to do this? Doesn't matter, pay up or go to jail.

Of course the list goes on but I am afraid if I list anymore you will think I am just being mean. I hope that this demonstates why an RO is an attractive deal for a woman in order to get power and control over a man. This is why there has to be a burden of proof in order to get an RO. You can't destroy a man's life just because someone makes an accusation. There has to be proof.

And to tie this in with the OP. Even though all this was done, and even though I had done nothing AND it was apparent that the RO was only asked for to accomplish the above the attorney I hired to fight the RO told me I had almost a zero chance of getting it lifted. The fact that my RO was eventually dropped is irrellivent. By the time it was my life, finances, reputation and emotions were destoyed.

UltraVires
08-16-2011, 12:29 PM
So, the point I was making is that if an RO is granted and then the person who has the RO against them hires and attorney and (for the sake of this example, lets say this happens within two weeks of the RO being granted) successfully fights and the RO is dropped it is my opinion that the RO should have never been granted in the first place.


There is a huge difference between:

1) On the basis of the evidence presented, there is not enough factual information to warrant the issuance of an RO.

and

2) The bitch is lying.

In other words, she can actually, really and truly be in fear of her safety, but the standard for issuance of an RO (at least it is supposed to be) is that would a person in her situation reasonably be in fear of her safety.

If she was hypersensitive, she didn't commit perjury by applying for the RO.

obbn
08-16-2011, 12:39 PM
The only solution: Pay her cash to drop it, and get an attorney to negotiate as by the terms of the RO, you can't contact her directly.

Please tell me you didn't type this. Really? From your post you sound like an intelligent person. Correct me if I am wrong but are you advocating Government Sponsored Extortion? If that is a solution then it gives a huge incentive for the placement of false RO's. I would hope that after this being pointed out you would re-consider that statement. You seem like a nice enough person, so I will chalk it up to a long post with a hastily written statement.

tdn
08-16-2011, 03:10 PM
Hypothetical question:

Boy meets girl. Boy falls in love with girl. Boy asks girl to move into his house. The day after she moves in, she files for and gets a RO. Can she keep the house?

That seems scary to me, but a little far-fetched to be reality.

Fotheringay-Phipps
08-16-2011, 03:24 PM
I would guess she would keep it for the duration of the TRO, especially as the judge will have no way of knowing that she just moved in yesterday. But I would have to think he could subsequently have her evicted in ordinary civil courts based on his ownership and her limited connection to the place, as above. (The RO might remain in place.)

Now that you bring it up, suppose she never actually lives there - or, FTM, suppose she's never seen the guy in her life? Does she have to bring documentation to court proving that she's actually connected to the guy and/or lives at the place? I looked around a bit and all I can find is that you fill out some forms.

So here's the scenario. Some stranger goes to court and fills out forms claiming to be the girlfriend or spouse of some wealthy man, using his actual address as her home address. She is convincing in front of the judge, and he grants her a TRO. The cops show up at the guy's house and bounce him out, at which point she moves in. He can't go near the place for the duration of the TRO, nor can anyone else on his behalf. 10 days later, he shows up at the hearing and proves that he has no connection to this woman at all, but by then she is gone, with who knows what of his possessions with her ...

Hard to believe there's not some flaw in this scheme. But maybe there's something to it.

tdn
08-16-2011, 03:29 PM
I think if it were possible, then we would have heard of someone trying it before.

obbn
08-16-2011, 03:56 PM
I would guess she would keep it for the duration of the TRO, especially as the judge will have no way of knowing that she just moved in yesterday. But I would have to think he could subsequently have her evicted in ordinary civil courts based on his ownership and her limited connection to the place, as above. (The RO might remain in place.)

Now that you bring it up, suppose she never actually lives there - or, FTM, suppose she's never seen the guy in her life? Does she have to bring documentation to court proving that she's actually connected to the guy and/or lives at the place? I looked around a bit and all I can find is that you fill out some forms.

So here's the scenario. Some stranger goes to court and fills out forms claiming to be the girlfriend or spouse of some wealthy man, using his actual address as her home address. She is convincing in front of the judge, and he grants her a TRO. The cops show up at the guy's house and bounce him out, at which point she moves in. He can't go near the place for the duration of the TRO, nor can anyone else on his behalf. 10 days later, he shows up at the hearing and proves that he has no connection to this woman at all, but by then she is gone, with who knows what of his possessions with her ...

Hard to believe there's not some flaw in this scheme. But maybe there's something to it.



My GOD Phipps, don't give 'em any more ideas!:smack:

obbn
08-16-2011, 04:19 PM
If she was hypersensitive, she didn't commit perjury by applying for the RO.

Great counter to my point, but as a society are we going to say that it ethical and right to trash a mans reputation, resrict his freedom of movement and put him in possible financial jepordy because someone is hypersensitive? There has to be (at least in my opinion) a standard that has to be meet prior to the issuance of an RO. It goes back to the same argument of "is it better to let twenty guilty men walk or imprision an innocent man for life?

*Note to the SD moderator. I understand that the conversation keeps bouncing back to the legality and fairness of RO's. I don't think it is possible to discuss the OP's origional question without having this debate. I apologize if we are pushing the rules.

Rilchiam
08-16-2011, 04:25 PM
obbn, are you making this up?

If not, what led to the breakup?

Re: tdn's hypothetical, she'd probably at least have to have received mail at that address.

obbn
08-16-2011, 04:48 PM
obbn, are you making this up?

If not, what led to the breakup?

Re: tdn's hypothetical, she'd probably at least have to have received mail at that address.

I wish I could say that the events I described were fiction. But unfortunately they are 100% true and accurate. I have tried to be as non-biased as possible in my description.

The breakup was caused (at least I think, sometimes I still can't figure it out) by my injury. It was serious enough that I am not able to work any longer. I had a high paying career and I don't think that she could handle that fact. Also, she was having an affair while I was laying in ICU teetering between life and death. Of course I didn't know this at the time, but wasn't too hard to figure out when he was moved in the day after I was forced out.

And, if you think that what I have described is bad you don't want to hear about the 7 years since the divorce. It is filled with false accusation (almost crazy claims) to law enforcement and the using of my children as weapons against me. I am still in a legal battle over my children that has me financially and emotionaly drained.

The biggest problem I have with sharing my story here or with people I meet is I think I come off as bitter and exagerating. I assure you that I am neither. My current wife (who btw has been wonderful through all this) told me recently that if she hadn't seen the weapons grade crazy that my ex wife is with her own eyes she would have never believed it. I told her the stories before we were married and I could always see a bit of skeptisism in her eyes, but she has experienced it and found out if anything I was down playing events.

As I said in a previous post in this thread, I share my story whenever I can, becasuse people need to be aware that this is happening. Not just to me, but thousands of men every single year. Possibly my story will be read by someone with the power to change the system. Perhaps my story combined with the many on the internet (do a search and you will be amazed at how the stories all sound the same. Too similiar to discount a conspiracy for lack of a better word) will motivate our law makers to look into the issue. Or at the minimum influence the thinking of Judges to help them consider what is the right thing to do.

I will close by saying that I don't support or advocate violence of any sort towards women. I would be the first one to stand up in defence of a woman if I saw her being threatened. I have a daughter and I would never want her hurt. But I think that we have to find a way to help those that truly need help while protecting those of us that are innocent. And possibly penalize those that use the courts and RO's as weapons of revenge.

markm
08-16-2011, 04:53 PM
As far as contact between the two parties in a RO, at least in MO, neither party can make contact. When in court for my divorce last year (amicable, no RO), there was a couple ahead of us with a hearing for a RO renewal.

The guy had gotten one against the woman and the judge asked if he wished to renew it. The case before was a property dispute and the judge had sent the two guys to a meeting room to try to hash it out before he even heard the case. The guy asked if they could do the same thing. The judge said, "No. The restraining order currently in effect forbids her contacting you. If I let you two go to a room and 'work it out', I am ordering her to violate the restraining order. The only reason she's even allowed near you right now is because she is in my court room." "Well, before I can say I want to renew, I need to ask her--" "Do you want it renewed or not? As long as it is in effect, she cannot speak to you, therefore, you cannot speak to her." "No." "Order dissolved, you both may leave."

obbn
08-16-2011, 05:01 PM
As far as contact between the two parties in a RO, at least in MO, neither party can make contact. When in court for my divorce last year (amicable, no RO), there was a couple ahead of us with a hearing for a RO renewal.

The guy had gotten one against the woman and the judge asked if he wished to renew it. The case before was a property dispute and the judge had sent the two guys to a meeting room to try to hash it out before he even heard the case. The guy asked if they could do the same thing. The judge said, "No. The restraining order currently in effect forbids her contacting you. If I let you two go to a room and 'work it out', I am ordering her to violate the restraining order. The only reason she's even allowed near you right now is because she is in my court room." "Well, before I can say I want to renew, I need to ask her--" "Do you want it renewed or not? As long as it is in effect, she cannot speak to you, therefore, you cannot speak to her." "No." "Order dissolved, you both may leave."

Interesting story and absolutely correct. The RO placed on me forbid her contacting me. But it also made living life quite a crap shoot. As I believe one poster pointed out upthread: If I went to the store and she showed up I could be jailed. I went out to eat and she showed up, I better run away quick.

She was so intent on causing me problems she tried to have me arrested for passing her car on the interstate. Mind you, this was not some barren backwoods county road. I passed her on I-285 in Atlanta 40 miles from our home. I had and could not have had any reason to think she would be on this road. I didn't stop, hell I didn't even look at her. I only realized it was her and her car as I was passing. She called the police and demanded that I be arrested for violation of the RO. I was visited by the boys in blue, but thankfully the officer was a reasonable man and told me he wasn't going to arrest me for that.

UltraVires
08-16-2011, 05:09 PM
Please tell me you didn't type this. Really? From your post you sound like an intelligent person. Correct me if I am wrong but are you advocating Government Sponsored Extortion? If that is a solution then it gives a huge incentive for the placement of false RO's. I would hope that after this being pointed out you would re-consider that statement. You seem like a nice enough person, so I will chalk it up to a long post with a hastily written statement.

I stand by it. I hate the government sponsored extortion as much as anyone. If you can change the system more power to you. If I was in the situation, I would offer cash to get the order lifted. I enjoy hunting.

Hypothetical question:

Boy meets girl. Boy falls in love with girl. Boy asks girl to move into his house. The day after she moves in, she files for and gets a RO. Can she keep the house?

That seems scary to me, but a little far-fetched to be reality.

Doubtful. When issuing a TRO, a court would look at fairness, leaning towards the "victim," in establishing who gets what. A judge would be hard pressed to give the girl sole possession of the house based on this. But it would be a fact question. If she sold her house, moved across country to a strange town with boy and had nowhere else to go, it is certainly possible. If she could just go back to her apartment? Doubtful.

Great counter to my point, but as a society are we going to say that it ethical and right to trash a mans reputation, resrict his freedom of movement and put him in possible financial jepordy because someone is hypersensitive? There has to be (at least in my opinion) a standard that has to be meet prior to the issuance of an RO. It goes back to the same argument of "is it better to let twenty guilty men walk or imprision an innocent man for life?


Agreed. Good luck in changing the system so that a judge will actually apply the law in issuing an RO. They are all scared that the one time they tell a woman, "Sorry, there isn't enough here" they will read the newspaper the next day about a woman who was scared of her husband, went to a magistrate for help, was denied, and three hours later was found strangled to death. They don't want the heat for that, so ROs are given freely.

Throw her in jail for perjury? The man hater groups would love that. Headline "Abused Woman Seeks Help, Judge Imprisons Her"

As far as contact between the two parties in a RO, at least in MO, neither party can make contact.

This is not the case in a lot of states. She can call you all she wants. If you call her you go to the pokey.

obbn
08-16-2011, 05:52 PM
I stand by it. I hate the government sponsored extortion as much as anyone. If you can change the system more power to you. If I was in the situation, I would offer cash to get the order lifted. I enjoy hunting.

I am quite pleased that you responded to my question. Your latest post was well thought out and reasonable, so my intitial assesment that you are intelligent was correct. And I somewhat understand your reasoning but do you realize the pandora's box you are opening if this course of action became the standard way to cope with a RO, falsely placed or otherwise. Let me fast forward us to a conversation in the future:

Woman talking to supportive friend: "You know, Dave and I are having problems. I have been having an affair with Mike and I don't know what to do. I wish we could just go away for a small vacation together and take sometime to decicde what to do. I talked to Mike and we would love to go to Hawaii, but we just can't afford it"

Supportive Friend: "Oh I hear ya girl. That Mike is really a catch! He is so much better than that SOB husband Dave. I sure wish I could give you the money so you two could go away for a little while, but I just don't have it. Hey! Wait a minute, I have an idea. Why don't you go to the courthouse and pretend Dave threatened you. Tell them you are really really scared of him. Now, make sure you cry a little so it is convincing. You might even want to wear that dress, you know the one that makes you look like a school teacher from Little House on the Praire.

The Judge is sure to grant you an RO. And you know Dave, hunting season is coming up and he would do anything so he could go. But he won't be able to because Betty told me if he has an RO he can't be around guns."

And the best part is Dave doesn't have to do anything to you at all. Peggy said that the Judges ALWAYS order an RO, because men are so big and scary and we girls never ever lie.

Woman "*Squeal* THIS is going to be so much fun ... tell me more, tell me more."

Supportive Friend "Well, from what Betty told me Peggy Sue that works down at the mall did this. You know Peggy right? Her husband, what a jerk, he deserved this. Anyway, when Dave finds out he can't go hunting you can tell him that you will drop the RO if he gives you $5,000. And with that money you can go on your vacation with Mike!"

Woman "*Squeal, Squeal* Oh this is so going to work. Now should I say he shoved me and said he was going to kill me? What hairstyle do you think most says I've been abused? Do you think these earings go with a RO hearing?"

Of course I am being absurd, but I can certainly see this scenario playing out over and over again. When one finds out they can do it and get away with it, how long do you really think it would take for this to become a common occurance? This is why the police and the US Government don't pay terrorist. Because if you pay one, soon you will be paying thousands.

obbn
08-16-2011, 06:03 PM
obbn, are you making this up?

Oh, one other thing I forgot to add. You need to know this to understand how terrified I am of my ex and the possiblity of another false accusation and undeserved RO.

It is neccassary for me to have occasional contact with my ex because we have two children together. There are times when we must communicate about school, health issues, parenting concerns etc. Plus I have to be in close proximity to her when we exchange the children for visitation. Because of what has happened in the past, the false allegations and the threats of RO's and such I ONLY communicate with her via email or letter. I will never ever directly speak to her wether it is in person or on the telephone.

Also, when we exchange the children we do so at the local Police Department and an officer is present for each and every exchange. One would think that this is something she requested, after all she had an RO on me at one time, it must always be in the back of her mind that I could at any moment become a danger to her. BUT, this requirement was mine. I refused to agree and sign our divorce decree without this requirement being agreed to by her.

It is for MY protection. If I never am alone with her and there is always a police officer to observe any interaction between us I cannot be accused of threatening her or making a threat to her. I use a cell phone only so all of my calls can be documented, so she can't accuse me of harrasing her on the phone (or at least prove it came from my number). Everything is in writing, as proof that I am not doing anything that could be thought of as warranting another RO.

It is an absolute shame that my children have to see their father live like this and be exposed to this level of distrust. But what are my options? I know for fact that she is willing to lie to not only me, but the police and the courts. I have to do everything I can to protect myself. Thought that this was very relevant to your question.

Bricker
08-16-2011, 06:42 PM
Did you read my post? As I spelled out pretty clearly, a non-final order cannot be appealed. Hence, the complaining party has no other remedy. The mandamus sought in this case is a command to vacate the temporary restraining order.

How about an interlocutory appeal?

tdn
08-16-2011, 06:43 PM
This is not the case in a lot of states. She can call you all she wants. If you call her you go to the pokey.

What happens if you pick up the phone, realize it's her, and hang up?

Bricker
08-16-2011, 06:46 PM
obbn, I'm sorry if I missed this, but in what state did your trevails take place?

obbn
08-16-2011, 06:52 PM
obbn, I'm sorry if I missed this, but in what state did your trevails take place?

No, you didn't miss it. I tend to try to keep details like locations and names out of it so if the ex ever stumbles across one of my post she can't try to use it against me somehow. I know, the paranioa is mind boggling isn't it? :smack:
But no harm in saying. This all happened in Georgia. According to my attorney the particular county that we lived in was notorious in the legal community for the number of undeserved RO's handed out. In fact several lawyers told me that the judge that granted mine was considered an "activist" judge by the lawyers in her district. This combined with a womans shelter that encourages the use of RO's wether they are justified or not makes for a very hostile enviroment for men in general.

obbn
08-16-2011, 06:55 PM
What happens if you pick up the phone, realize it's her, and hang up?


As absurd as it sounds if she pushes it, you go to jail. When you are subjected to an RO the only safe place is locked in a room with a police officer observing everything. Hmmmm .. if only they had a place like this somewhere???

tdn
08-16-2011, 07:12 PM
Dunkin' Donuts?

tdn
08-16-2011, 07:30 PM
Two more questions:

1. If the woman has a RO on the man, but is allowed to call him or go to his house, wouldn't it be prudent -- and easy -- to take out a RO on her as well? It seems like that would solve the problem.

2. During obbn's court case, could his lawyer have called the man-hater as a hostile witness? Could he just point to her and say "I call that lady", or would he have to know her name? Would discovery apply?

medstar
08-16-2011, 08:31 PM
Sorry for the double reply to your post, but after re-reading it I think it is extreamly important to take issue with the statement above. While I will agree that an RO does tell someone to stop doing something it also does a lot more. It gives the person who requested the RO essentially unlimited power over the marital assests of a family. When my ex had the RO on me she did the following and I was forbiden by the courts to do anything to stop it:

1: She cleaned out our bank accounts, leaving me with zero money to live on.

2: I had recently broken my back at work and recieved One Hundred Thousand Dollars in a settlement from the company due to their neglegence in my injury. She also cleaned that account out too. One Hundred Thousand Dollars and every day I pay the price for that money with my injury. And no, she didn't have to give it back to me during the divorce. It was in a joint account and the court, via the RO, gave here the exclusive right to take that money.

3: She ran up and maxed out all of our credit cards and then closed any out that had any balance left on them. Who do you think they called when payment came due? They were joint, didn't matter if she ran them up.

4: I had a car in the garage that I was restoring as a hobby. The car was not titled yet and 99% complete at that time. My friend and I spent about 2 years bringing this car back to life to essentially a show car restoration. She took the title to the DMV and had it titled in her name. Because of this RO an expensive asset became hers alone.

5: She moved her boyfriend in the house the day after the RO was granted. Do you think the courts were concerned that he was in my house living with my children? Do you think they were concerened about the mental confusion my children experienced from seeing thier father kicked out one day and a new man moved in the next?

6: And the great news is I got to finace it all. Guess who was still responsible for the electric, cable, water, etc....??? Why didn't I just quit paying? Because the terms of the RO forbid me to make any changes in reference to housing and it's assosiated accounts. They were all in my name. I better find the money to pay them, because if I don't and they get cut off I go to jail. But wait? Remember paragraph's one and two where she cleaned out the accounts and left me with zero access to any funds? Where am I going to get the money to do this? Doesn't matter, pay up or go to jail.

Of course the list goes on but I am afraid if I list anymore you will think I am just being mean. I hope that this demonstates why an RO is an attractive deal for a woman in order to get power and control over a man. This is why there has to be a burden of proof in order to get an RO. You can't destroy a man's life just because someone makes an accusation. There has to be proof.

And to tie this in with the OP. Even though all this was done, and even though I had done nothing AND it was apparent that the RO was only asked for to accomplish the above the attorney I hired to fight the RO told me I had almost a zero chance of getting it lifted. The fact that my RO was eventually dropped is irrellivent. By the time it was my life, finances, reputation and emotions were destoyed.

Well, obbn, I certainly feel for you; I don't know what I'd do in that situation. I was wondering however, how the monetary situation was handled by your divorce lawyer. Did you document everything your ex did when she drained your accounts? Were you able to prove that $xxx amount was in your joint checking account before and now there's nothing left? As I understand it, any money that either spouse takes out of the accounts has to be returned and everything is split down the middle, subject to your area laws of course. And now that you're not employed at a high paying job any more, were you able to lessen the support you have to pay to your ex? Were you able to "pay her back" in even a small way?

Gary Robson
08-17-2011, 12:13 AM
*Note to the SD moderator. I understand that the conversation keeps bouncing back to the legality and fairness of RO's. I don't think it is possible to discuss the OP's origional question without having this debate. I apologize if we are pushing the rules.[moderating]
At this point, I think keeping the thread from becoming a debate is futile. I'm moving it over to GD so you can let the discussion evolve.

obbn
08-17-2011, 12:17 AM
Well, obbn, I certainly feel for you.

Thanks for the thoughts. It is a very emotional and difficult situation. My goal in telling my story is not to ellicit symathy (although it is appreciated), but to make people aware, to possibly attract the attention of someone in power, and maybe most importantly to keep someone else from falling into this hell.


I was wondering however, how the monetary situation was handled by your divorce lawyer. Did you document everything your ex did when she drained your accounts? Were you able to prove that $xxx amount was in your joint checking account before and now there's nothing left? As I understand it, any money that either spouse takes out of the accounts has to be returned and everything is split down the middle, subject to your area laws of course. And now that you're not employed at a high paying job any more, were you able to lessen the support you have to pay to your ex?

In a perfect world I could present evidence to the court of what happen and the court would use it's power to rectify and make the situation right. However, this is the real world. Both my attorney and the Judge seemed to pay little attention to this issue, in fact the Judge in my case made the comment that "the funds were in a joint account, it was as much hers as mine", implying in his eyes that if I was stupid enough to not protect the money I got what I deserved. Looking back I guess I could have put up a greater fight to try to reclaim. But at the time I had to look at the situation as realistically as I could. First, attorneys don't come cheap. No matter how sad your story is, how righteous your cause you are nothing more than billable hours to them. They will fight, but be prepared to pony up a huge amount for it. I didn't have it, so I couldn't push the issue as hard as I would have wanted to. The attorney told me that in order to prove our case in this issue I would have to hire a forensic accountant to show where the money went. Then of course he would have to spend the time preparing and then arguing this issue. The costs would have been astronomical without an overwhelming chance at victory. Secondly, I believe that the money was long gone. Meaning I think it was taken and hidden as cash or distributed to other to hide for her. Getting a judgment is one thing, collecting is another. I suppose if I had a reasonable expectation that the money could be retrieved I might have been able to justify trying to raise the funds to fight.

Also, please keep in mind that my emotional state at this time was not good. I had recently had 3 major surgeries and hadn't fully recovered. I lost my career. My marriage was over and my heart was breaking about my children. Needless to say at the time I was emotionally numb and everything was hazy. If I think back on it now I will sometimes tear up as I still feel the pain.

What I have observed through this whole ordeal is that the courts in this country favor women in divorce and custody matters. I have gathered this opinion not only from my own experience, but from reading and talking to literally thousands of divorce dads. Women are not held to the same standards that men are held to. Asset division and child custody are so biased in favor of women that in order for a man to come out on the winning side of these issues the woman has to be so bad that even the most liberal activist Judge has no choice but to see it. Hopefully this will one day change and the family courts will decide issues not based on gender, but based on what is fair and best for the children.

Were you able to "pay her back" in even a small way?

Payback is a subject I have a hard time with. As a human I can't say that I haven't dreamed of having my day. The thought of her world crumbling down and justice served for the lies and heartache that she caused has certianly crossed my mind, as I think it would anyone wronged in this way.

However 7 years have passed and as strange as it sounds you start to become used to it. It hasn't stopped and the games, the lying and the deciet still continue. But whenever I think about payback or revenge I am tempered with thought of my children. As much as I would like to see justice served I have to always keep in mind that this woman who has caused me so much pain is the mother of my children. To them, she is their world, so anything I could do would be hurting them as well. I have chosen to take the high road, but it is a difficult road to take. It isn't easy to supress the urge to make things right, but I would like to think that by doing so there is a "reward" for me in the end. I am not particularly religious, but I do think that one day I am going to have to answer to the Man. Not to mention the fact that I wouldn't ever dream of doing anything that might get me in hot water with law enforcement or the courts.

I like to believe that I have already gotten some measure of payback. I am married again to a wonderful woman and we have a great life. I would like to think that this bothers my ex more than she would ever admit.

In the end what I really wish and pray for is for my ex to stop using my children as weapons against me. I just want to be a father to my kids and be involved in their lives. She has done things recently that I am fighting in court. These things are way too much to go into in this thread and almost too painful to recount. But with any luck she has crossed the line this time and the courts will have no choice but to ignore her gender and put a stop once and for all to this insanity.

Thanks to all of you for your kind words. I have found this thread to be very intereresting. To the OP, I apologize if my story has in any way highjacked your topic. I didn't mean for it to, but thought that relating my experience would help you understand the world of RO's.

Fotheringay-Phipps
08-17-2011, 08:51 AM
Hopefully this will one day change and the family courts will decide issues not based on gender, but based on what is fair and best for the children.That's where you (and others) go wrong. As long as "best interests of the children" is the overriding concern, women will always be favored. Bottom line is that although there are exceptions, women tend to have, and always have had and always will have, a stronger nurturing relationship with the children. (This is widespread in nature.) So as long as the children's intrests are paramount, the women's interests will be paramount too, since these will always be difficult to untangle.

Personally, I disagree with the concept that the best interests of the children should always be the overriding consideration, and think that other people have legitimate interests too, and general concepts of fairness and justice have some claim to consideration as well. But a lot of people take the opposite approach and are reduced to arguing that the best interests of the children are synonymous with their own best interests, and this is frequently an unconvincing argument.

Really Not All That Bright
08-17-2011, 09:48 AM
How about an interlocutory appeal?
As far as I am aware, temporary restraining orders are virtually certain to not meet the collateral order doctrine bar, or its equivalents at the state level, so I didn't address interlocutory appeal.

In any event, a TRO would be moot by the time the appeal was heard.

Bricker
08-17-2011, 09:59 AM
As far as I am aware, temporary restraining orders are virtually certain to not meet the collateral order doctrine bar, or its equivalents at the state level, so I didn't address interlocutory appeal.


Taking the recitation that obbn provides as fact, I'm not sure I agree:

The money in the joint accounts was prohibited to the man but available to the woman. (Outcome conclusively determined by the terms of the TRO).

The issue is collateral to the merits. (Who gets the money in the joint accounts is obviously not the subject of a protective TRO).

The money is gone because the woman had just as much right to it as the man did, it being a joint account. (Effectively unreviewable if appeal not permitted).

cosmosdan
08-17-2011, 10:10 AM
It is illegal to possess a firearm when subject to a restraining order. I don't know if the OPs friend likes to hunt, target shoot, collect guns, or carry a weapon for protection, but that is something that could be a factor.

Interesting. I wonder if that was true about 8 years ago. My daughter was getting out of a bad relationship in AZ with a controlling little jackass. He continued to harass her and came over one night with his pistol strapped on. I encouraged her to get a restraining order but she never did. eventually she left the state to get away from him.

cosmosdan
08-17-2011, 10:44 AM
An item of possible relevant interest.

Years ago a girl I was dating was having an issue with a guy she had flirted with and then decided not to date. She lived close enough to the bakery she worked at to walk to work and he took to following her in his car driving real slow. They had a serious talk and I think he knew she was considering a RO. His response was to file one against her. She was mortified when the police showed up at work to talk to her about it.

Nothing much happened after that and it was forgotten in a few months. Interesting tactic on his part to avoid a RO.

obbn
08-17-2011, 12:19 PM
Taking the recitation that obbn provides as fact, I'm not sure I agree:

The money in the joint accounts was prohibited to the man but available to the woman. (Outcome conclusively determined by the terms of the TRO).

The issue is collateral to the merits. (Who gets the money in the joint accounts is obviously not the subject of a protective TRO).

The money is gone because the woman had just as much right to it as the man did, it being a joint account. (Effectively unreviewable if appeal not permitted).

Bricker, while you make a logical point, what you don't realize is that Family Courts take such a wide interpitation of the law that literal meaning is useless.

You seem to think that what I have related isn't factual. When a TRO is placed the person with the TRO is forbiden to access joint bank accounts period. The other person has free access.

You might be absolutely correct about the appeal issue, but let me ask you, who is going to pay for that appeal? Every penny I ever saved in my life was now gone. Do you think that I could find an attorney willing to represent me Pro Bono and appeal the decision?

I think the mistake you are making is assuming just because something is legal possible it can be done. Unfortunately in this country the full protection of the legal system is not available because we simply can't afford it. Especially when it comes to men, for there are many resources in place to help women. How many can you think of for men?

It always makes me think of the WIC program to help those with low income have access to food. Do you know what WIC stands for? Women, Infants and Children. Do you notice a particular group absent? From the WIC website:

Mission is to support low-income women and children up to age 5 who are at nutritional risk .........

According to the US Government only women and children can be at "nutritional risk". What a great world we live in were men are incapable of starving to death. I

I realize that this has nothing to do with RO's, but it certainly illustrates the point that the US Government (which the courts are certainly a member) treat women differently than they do men.

obbn
08-17-2011, 12:41 PM
Bricker, I need to add also, that I was never making the claim that the RO's directly prevented me from recovering funds. That decision was made during the divorce. However the RO gave her the ability to have unrestricted access to them and to prevent me from in any way stopping the fleecing of our accounts.
I do however think that the RO played a significant factor in the divorce, putting me at a overwhelming disadvantage in the eyes of the court. I would be willing to go far as to say that RO's are used as a divorce strategy, to give (mainly) women the advantage in court. Of course in my example I am refering to RO's gotten through lies and deciet. RO's placed out of an actual and real threat are justified and a different animal all together.

Fotheringay-Phipps
08-17-2011, 12:45 PM
When a TRO is placed the person with the TRO is forbiden to access joint bank accounts period. The other person has free access.I don't think this is true.

It always makes me think of the WIC program to help those with low income have access to food. Do you know what WIC stands for? Women, Infants and Children. Do you notice a particular group absent?WIC is only for preganant & nursing women. If there were pregnant & nursing men who were denied similar benefits you would have a point.

obbn
08-17-2011, 01:23 PM
I don't think this is true.

WIC is only for preganant & nursing women. If there were pregnant & nursing men who were denied similar benefits you would have a point.

Hate to take issue with you, but I lived it. The order specifically bared me from removing money from joint bank accounts, disconnecting any utilities in my name from my residence and a number of other restrictions. I am sure I have the origional RO here somewhere filed away. If I get motivated enough I will try to find it and quote exact verbage. However, it would dredge up old and very unpleasant memories so maybe I won't.

I do have a point when it comes to WIC. The exclusion of men. The program is designed to help people who are low income obtain food resources. That the program by design was concived to exclude men is very telling as to the current attitude toward men.

Men are constantly overlooked in situations where gender can play a part. Have you ever seen a "battered" mens shelter? Nope, at least I cannot recall every hearing of one. Is that because men are never battered by women? I recall one poster up thread who contacted a womens shelter after his brother was slapped with a TRO even though he was the victim. The quote from the representative of the shelter was something to the effect that it was her belief that men can never be battered by a woman.

In the end the courts have been conditioned to treat men and women different. The assumtion is that all men are dangerous and violent. That in almost all cases men are not suited to have primary custody of the children (and yes, I am aware that it does happen in some circumstances. However the standard assumtion is that the women get the children, no matter what).

In my case I am currently in litigation trying to get custody of my children. My ex-wife broke the law concerning them. There is absolutely no other conclusion to reach that she broke the statute and that statute call for a charge that is a 3rd Degree Felony. I went to the DA and they are refusing to procecute. My attorney says that is normal and a problem. This statute is broken all the time by mothers and the DA almost never chooses to procecute. Let's see how that would work if the situation were turned around and a father did it.

And no, I will not go into details of the above violation as the issue is now pending in court. Once the case has been resolved I will be more than happy to go into detail, but I don't think that it would be advisable to do so now.

Fotheringay-Phipps
08-17-2011, 01:27 PM
Hate to take issue with you, but I lived it. The order specifically bared me from removing money from joint bank accounts, disconnecting any utilities in my name from my residence and a number of other restrictions.It's possible that your specific TRO had that component. You seemed to be making a general statement about TROs ("when a TRO is placed ..."), which I think is incorrect.

Re WIC, my point stands, but I'm not inclined to argue it.

Your other points about gender have some validity, but I was commenting about your specific point about WIC.

obbn
08-17-2011, 02:29 PM
It's possible that your specific TRO had that component. You seemed to be making a general statement about TROs ("when a TRO is placed ..."), which I think is incorrect.

Re WIC, my point stands, but I'm not inclined to argue it.

Your other points about gender have some validity, but I was commenting about your specific point about WIC.

I will conciede that possibly my WIC comment might be overblown on my part. I just thought it seemed strange the very name excludes men. Accidential or intentional? I only pointed this out to point out the prevailing attitude in society that men don't need help or are somehow considered different in society.

As far as my TRO, I don't believe other than names and addresses the TRO placed on me was unique to my situation. I say this because the TRO was clearly a form letter type of document with blanks to fill in names and such. And quite honestly I can see why, if the TRO was placed for a legitimate reason, such verbage and restrictions would be put into place. However, as is a common theme in this discussion, the good intentions are being perveted by some to be used for their advantage.

Fubaya
08-17-2011, 05:15 PM
As far as my TRO, I don't believe other than names and addresses the TRO placed on me was unique to my situation. I say this because the TRO was clearly a form letter type of document with blanks to fill in names and such. And quite honestly I can see why, if the TRO was placed for a legitimate reason, such verbage and restrictions would be put into place. However, as is a common theme in this discussion, the good intentions are eR being perveted by some to be used for their advantage.

Was your TRO unrelated to her claim of being afraid of you? TROs can be for anything. You can get one to stop someone from building a building or from leaving the state. I've never been married but it sounds standard that a divorcing person should be barred from making some of the financial changes you mentioned. The part that sounds strange is that she wasn't also barred. Did she get the TRO without your knowledge then by the time you went to court, was the money already gone? Did the judge ever see the account balances before and after she cleaned you out?

medstar
08-17-2011, 07:28 PM
Hate to take issue with you, but I lived it. The order specifically bared me from removing money from joint bank accounts, disconnecting any utilities in my name from my residence and a number of other restrictions. I am sure I have the origional RO here somewhere filed away. If I get motivated enough I will try to find it and quote exact verbage. However, it would dredge up old and very unpleasant memories so maybe I won't.

I do have a point when it comes to WIC. The exclusion of men. The program is designed to help people who are low income obtain food resources. That the program by design was concived to exclude men is very telling as to the current attitude toward men.

Men are constantly overlooked in situations where gender can play a part. Have you ever seen a "battered" mens shelter? Nope, at least I cannot recall every hearing of one. Is that because men are never battered by women? I recall one poster up thread who contacted a womens shelter after his brother was slapped with a TRO even though he was the victim. The quote from the representative of the shelter was something to the effect that it was her belief that men can never be battered by a woman.

In the end the courts have been conditioned to treat men and women different. The assumtion is that all men are dangerous and violent. That in almost all cases men are not suited to have primary custody of the children (and yes, I am aware that it does happen in some circumstances. However the standard assumtion is that the women get the children, no matter what).

In my case I am currently in litigation trying to get custody of my children. My ex-wife broke the law concerning them. There is absolutely no other conclusion to reach that she broke the statute and that statute call for a charge that is a 3rd Degree Felony. I went to the DA and they are refusing to procecute. My attorney says that is normal and a problem. This statute is broken all the time by mothers and the DA almost never chooses to procecute. Let's see how that would work if the situation were turned around and a father did it.

And no, I will not go into details of the above violation as the issue is now pending in court. Once the case has been resolved I will be more than happy to go into detail, but I don't think that it would be advisable to do so now.

Wow, obbn, you really sound like you're calmly in charge of your situation and I salute you for that. Would you be able to contact newspaper and TV reporters and get some publicity for your situation? If there's enough bad publicity about children's welfare, maybe the DA could be "persuaded" to file charges against your ex. Is she still with the boyfriend she moved into your house? Has she moved on since your split?

Really Not All That Bright
08-17-2011, 08:22 PM
Taking the recitation that obbn provides as fact, I'm not sure I agree:

The money in the joint accounts was prohibited to the man but available to the woman. (Outcome conclusively determined by the terms of the TRO).

The issue is collateral to the merits. (Who gets the money in the joint accounts is obviously not the subject of a protective TRO).

The money is gone because the woman had just as much right to it as the man did, it being a joint account. (Effectively unreviewable if appeal not permitted).
While I'm sure that obbn has provided an accurate recitation of the facts, I'm not certain he's providing an accurate recitation of the legal procedure. I don't work in family law, but I find it more than a little dubious that even the most callous judge would "lock" the husband out of joint accounts without making any provision for him- and more dubious that he would do so as a provision of an essentially unrelated TRO.

If someone can find a TRO posted online which includes that provision, I'll be happy to recant.

Bricker
08-17-2011, 09:18 PM
While I'm sure that obbn has provided an accurate recitation of the facts, I'm not certain he's providing an accurate recitation of the legal procedure. I don't work in family law, but I find it more than a little dubious that even the most callous judge would "lock" the husband out of joint accounts without making any provision for him- and more dubious that he would do so as a provision of an essentially unrelated TRO.

If someone can find a TRO posted online which includes that provision, I'll be happy to recant.

The question is, though, if a sufficiently callous judge did that, you seem to be saying his order is unreviewable. I'm saying that as a general principle, that's just the kind of situation an interlocutory appeal would solve.

obbn
08-17-2011, 09:31 PM
Was your TRO unrelated to her claim of being afraid of you? TROs can be for anything. You can get one to stop someone from building a building or from leaving the state. I've never been married but it sounds standard that a divorcing person should be barred from making some of the financial changes you mentioned.

The TRO was exclusively asked for by making the claim of "being afraid" of me. Embellished quite liberally with pure fantasy of events that never happened or complete exaggerations of events that did take place.

Did she get the TRO without your knowledge then by the time you went to court, was the money already gone?

The TRO was done without my knowledge and I had no opportunity to speak at the hearing. My attempt to fight it was after it had already been granted. At this point in the story we were still married and with no talk of a divorce. I could sense something was wrong in the marriage of course, but had no idea it was leading to this. I have to say that in retrospect it seems as if I was "set up" and that this was planned as a way to position herself for the upcoming divorce she knew was going to happen, but I didn't. She was having an affair and I was totally clueless to the fact. Of course, when she moved in her boyfriend it became obvious and filled in the pieces to the puzzle. All of a sudden the akward feeling I had about something being wrong all made sense. Can't tell you how stupid I felt finding out I had been so ignorant of the situation. I also felt very foolish, as I had a feeling for some time, a few months I guess, that something was very wrong between us. I tried so many times to ask what was wrong, to beg her to see a marriage counselor thinking that I could fix the problem even though I didn't really know what it was. But, by that time, her mind was made up, she just had to figure out how to get out in a manner that best benifited her and no amount of trying on my part was going to help.



I've never been married but it sounds standard that a divorcing person should be barred from making some of the financial changes you mentioned. The part that sounds strange is that she wasn't also barred/QUOTE]

You bring up a good point, but you have to understand that when the TRO was granted we weren't in the process of getting divorced. I suspect the reason that the person with the TRO placed on them is restricted from getting money from bank accounts is to prevent that person from causing a financial problem instead of a physical threat problem. I suppose that a pissed of boyfriend/husband could try to make life difficult for the one who put a RO on them by taking all of the available money they had. It does make sense to do it does make sense to put that restriction on if there is truly a threat, but you of course can see the problem if the RO is being used under a false pretence.

[QUOTE=Fubaya;14150590] Did the judge ever see the account balances before and after she cleaned you out?

As explained above it was briefly mentioned in court, the judge asked me if the funds were in a joint account and when I affirmed they were, the matter was pretty much overlooked. As also mentioned, I could have put up a serious fight about it, but I didn't have the funds to press the issue, $150 an hour for an attorney makes the bill add up quick.

Not to mention the fact that emotionally I was a complete wreck. Looking back on the events now it is a miracle that I was able to function at all. The money loss seems more important to me know than at the time. At the time I was trying to come to grips with the fact that my marriage was over (remember, I really didn't know this was a possiblity, I knew we had a problem, but I could have never guessed it would lead to this.) and my family was being destroyed. I was in a haze. I was confused, scared and heartbroken. You also have to remember that I was watching my ex turn into a mean spirited person and I was having a hard time coming to terms with that. The divorce was so sudden, it wasn't like I had time to prepare myself for what was happening.

obbn
08-17-2011, 09:45 PM
[QUOTE=Really Not All That Bright;14151164]While I'm sure that obbn has provided an accurate recitation of the facts, I'm not certain he's providing an accurate recitation of the legal procedure. I don't work in family law, but I find it more than a little dubious that even the most callous judge would "lock" the husband out of joint accounts without making any provision for him- and more dubious that he would do so as a provision of an essentially unrelated TRO.QUOTE]

You sound like a lawyer so you are probably right in the fact that my recollection and understanding of the specific laws, rulings etc.. might be in error. The only thing I know is what the final outcome was. I had an attorney and of course he handled the legal stuff.

What I did walk away with is the experience that not all attorneys are equal and that in order to get a really decent representation you need to be able to pony up some serious money. I won't go as far as saying my attorney didn't have my best interest in mind, but I did get the feeling that because I was on a very limited budget that the quicker he got this case disposed of the better.

On the subject of the TRO, I think what you fail to understand is that a TRO doesn't seem to follow the saying "Innocent until proven guilty". It really felt like I was guilty and would have to prove myself innocent. It felt that the only concern was for my ex who filed for the TRO. The impression I got was that everything in the world was being done to protect her, to make sure there was no way I could do any harm, wether it be financial or physical. If circumstances left it that I was unable to pay for food or shelter, so be it. If it wasn't for my family I would have been in a world of trouble.

In the end it is quite possible that my situation was extreame and one of the worst. My current attorney has told me that he considers my ex to be "one of the worst he has ever seen". This man is a older, very experienced attorney who has handled thousands of cases. Perhaps I was unfortunate enough to be in the Perfect Storm of TRO/Divorce hell. Who knows? But, what I do know is that abuse of the RO system is rampant and the RO part of my story is not unique to my situation. There has to be a serious look at this issue and changes need to be made to protect men (it is mostly men this happens to) from those who use the courts as their personal tool.

Also, as mentioned before I will attempt to find the copy of my RO, so I can quote the specific wording. It has been 7 years since this happened so it is impossible for me to recall the exact wording. I know that it is filed away in a box in the attic, obviously something that I have no desire to keep handy as a reminder.

medstar
08-19-2011, 05:52 PM
Obbn, how are your kids doing now? Do you have a good relationship with them? Are they aware of your dealings with your ex-wife and what do they have to say about their relationship with her? Has your ex-wife mellowed out somewhat or is she still jerking you around? I hope your situation is looking up and your relationship with your current wife is good.

obbn
08-20-2011, 02:22 AM
Obbn, how are your kids doing now? Do you have a good relationship with them? Are they aware of your dealings with your ex-wife and what do they have to say about their relationship with her? Has your ex-wife mellowed out somewhat or is she still jerking you around? I hope your situation is looking up and your relationship with your current wife is good.

Well, thanks for the concern. First off I am re-married to a wonderful woman who has been more supportive through all this than I ever thought possible. It is difficult for her to see the emotional roller-coaster I am on, but she is always there to lend support or a sympathetic ear.

My kids have proven incredibly resiliant through all of the changes in their young lives. I have done my absolute best to be a good father. Although because of recent actions of my ex I no longer am able to see them often I call every single night and do the best I can to be involved in their lives. The bad side to this is they are used as weapons against me. The parental allienation that is happening is obcene. It is obvious that the children are being "indoctronated" (sp?) by my ex and it shows in the way they treat me sometimes. Hopefully it will be apparent to the court during the latest action that is pending. Unfortunately I lack the resources neccassary to have phycological workups done to prove my case. My biggest concern is the mental health of my children and the ability for me to be a part of their lives. I cannot tell you how heartbreaking it is to be seperated from your kids when they are young.

As far as actions by my ex, they are constant and I have to live my life always on alert to possible threats. I am always sure that if I have to be near her that it is in public and in the presence of law enforcement for my protection. All communication is written, so that there is always a record of what is said. I have found that it is too easy to be falsely accused of something.

As mentioned in previous posts, I tell my story whenever possible in the hope that changes will be made. Sometimes I feel like breaking down and feel as if I am too tired to fight any longer. However that feeling only last until I see a picture of my kids or talk to them on the phone. I will never give up fighting for them and my rights as a father, no matter what the cost to me. Thanks to everyone here for the kind comments and good wishes.

Farmer Jane
08-21-2011, 02:27 AM
Very glad to hear that your RO was not granted because it wasn't warranted. However I will take issue with the "yeah, it happens" statement. You are a woman and yes there is a HUGE difference. I would be willing to bet that you would have an almost impossible task of finding one case of a non-granted RO when the person asking for it was a woman and the recipient was a man.
I am not trying to be a sexist or belittle your victory. However I have been a victim of a vindictive ex wife, I have been a member of many Dads Divorce fourums and the stories are ALWAYS the same. False allegation, undeserved RO. I would say that it is just bitter jilted husbands if I hadn't lived it myself. The strange thing is the story is always the same. I was told by two attorneys in my town when fighting the RO that the local battered womens shelter advises women on exactly what to say to get a RO. They encourange women to get an RO even if no actually threat or violence happened. It has gotten so bad that there is (or was at the time) a lawsuit against the womans shelter, claiming that they were pressuring women to take RO's out on their spouses even though the was no reason to. They were basically telling women to lie and telling them what to say to ensure the RO was given.
I am all for a RO if it is for a warranted situation and is for the protection of someone who is actually in danger. However, handing RO's out like candy because a woman is vengful and pissed off does nothing but dilute the sympathy that is due the true victims. The man who recieves a false RO has it hanging around his neck for the rest of his life. The system is broken and needs to be fixed. No proof, no RO period.

No proof, no RO, period? That sounds rough, especially since things like, "You stupid bitch, I'm going to kill you" and then creepily showing up where you are all the time makes the burden of proof especially difficult...but why wouldn't a battered women's shelter encourage ROs? I worked at a hotline/office once and I certainly knew all the steps to getting one in my area/state! Most women don't request an RO when they really need one. Women who can't disentangle themselves from abusive partners is half the problem. :o

Farmer Jane
08-21-2011, 02:43 AM
That brings up an interesting question - if someone has a restraining order against you, can you still file for a restraining order against them? What if you know they're going to file an RO, but you file one first? Do you win?

Generally, no. That's what happened in my case - he filed an RO as a retaliation (preemptive strike?) before he was arrested. Each are decided on their own merits, though the court/s may be aware of the other.


I'm sure the answer is: the woman wins no matter what

Ha.

(as you did in your case). But just curious.


In the end, we both found ourselves cleared of all charges (mine, civil; his, criminal). Unfortunately, one of us really was guilty.

I'm pretty sure this is incorrect.

Not only can you call up Joe Bob with no consequence to yourself, but Joe Bob can get into serious trouble if he talks to you on a phone call that you initiated.


Maybe I'm only speaking for my state; sorry. It just sounded like common sense.

I believe some women actually do this deliberately, in divorce situations when they are trying to entrap their husbands.

Right. Because only women get nasty in a divorce.

But sometimes prosecutors will prosecute violations of ROs even if the ostensible beneficiaries are unwilling. (Typical scenario involves a women who files a domestic violence complaint which triggers a RO, but then reconciles with her spouse. Nowadays the thinking is that such women need to be protected from their own bad judgment.)

Considering the number of women who go back to abusive spouses, maybe they have a good idea.

The piont I made is the if you are in true physical danger and you think that a RO will protect you, you live an in fantasy world and that mistaken sense of protection might end up getting you killed. If someone is intent on hurting you a piece of paper telling them to stay 100 yards from you isn't going to do anything. Women, for your own protection, use your heads. An RO might not be a bad idea, but don't let your defense down and think that just because you have one you are now behind some shield and the person you are afraid of can't hurt you.

Well, a few things:

1. If a women does it early on (say, the first hit/violent outburst/whatever), it can help stop the cycle of abuse in the very earliest stages.

2. ROs aren't just for women or men in abusive relationships. If your crackhead ex-coworker is making threats or whatever, these can come in handy. Again, it can act as a deterrent...and everyone has the right to be free from harassment. There is a degree of liberty that we've come to value in America, in case you haven't noticed.

3. In most states, a violation of that R.O. = jail time. So that's the real benefit.

My criminal-triggered TRO against the offender resulted in: 10 months of monitoring (bet that was uncomfortable in the summer months...), a trial (in which a jury of our peers found him 'not guilty' to the surprise of the assistant DA) a hefty bill for the offender, six days in jail (gotta love mandatory furloughs and budget cuts) and slight peace of mind knowing that he probably wasn't hanging around my place of employment, school, or house.

BTW, after that relationship ended (and I'd known him for three years and was in the dark about all of this), I found out that this was his third offense in the state!

So while your story sucks and all, I'm not convinced it's the norm. As someone on this board once said, "Don't stick your dick in the crazy." I now run an extremely thorough background check on everyone I'm potentially going to date. No, I'm not kidding.

obbn
08-21-2011, 08:03 PM
No proof, no RO, period? That sounds rough, especially since things like, "You stupid bitch, I'm going to kill you" and then creepily showing up where you are all the time makes the burden of proof especially difficult...but why wouldn't a battered women's shelter encourage ROs? I worked at a hotline/office once and I certainly knew all the steps to getting one in my area/state! Most women don't request an RO when they really need one. Women who can't disentangle themselves from abusive partners is half the problem. :o

The problem I guess isn't that a woman's shelter advocates RO's, the problem lies in the fact that they are advocating and advising RO's be taken out even when there isn't a threat of any sort. There is a price that is paid by the person with an RO on his record, so if it isn't warranted it shouldn't be granted. Encouraging someone to lie and get an RO under false pretenses is NOT okay.

There has to be some standard of proof, how can you justify the position that just because one is requested one should be granted? What then would keep anyone (male or female?) from using the system for revenge or a way to hurt someone? Ro's have their rightful place in our society, but falsely accusing somone for your own amusment shouldn't be tolerated.

Farmer Jane
08-21-2011, 11:53 PM
The problem I guess isn't that a woman's shelter advocates RO's, the problem lies in the fact that they are advocating and advising RO's be taken out even when there isn't a threat of any sort. There is a price that is paid by the person with an RO on his record, so if it isn't warranted it shouldn't be granted. Encouraging someone to lie and get an RO under false pretenses is NOT okay.

There has to be some standard of proof, how can you justify the position that just because one is requested one should be granted? What then would keep anyone (male or female?) from using the system for revenge or a way to hurt someone? Ro's have their rightful place in our society, but falsely accusing somone for your own amusment shouldn't be tolerated.


You said it was a battered women's shelter. Clearly there was some battery going on somewhere. Why else would you be getting a RO ?

The burden of proof for a TRO is very light and that is how it should be. It is very hard to 'prove' someone is harassing you. Remember, these are civil courts we've been (mostly) talking about, not criminal ones.

obbn
08-22-2011, 12:42 AM
You said it was a battered women's shelter. Clearly there was some battery going on somewhere. Why else would you be getting a RO ?

The burden of proof for a TRO is very light and that is how it should be. It is very hard to 'prove' someone is harassing you. Remember, these are civil courts we've been (mostly) talking about, not criminal ones.

I can only refer you to my previous quotes in this thread and those of some others. I will save followers of this thread a complete review of previous statements. I will give you briefly some reasons for a woman to get a RO under false pretense:

* To better position themselves in an upcoming divorce. Looks bad for the one with the RO against them. Can be used as a bargaining chip during the divorce process.

* To use as a means of revenge or as a means of causing hurt to someone.

* To better their positin in a custody battle

These are just three of the many reasons false RO's are taken out. As I have stated numerous times in this thread, I am not advocating the complete demise of RO's as a means to protect someone under threat. However I am fully aware that RO's are being used on a widespread basis, without justification. They are granted mearly on a statement of fear without any underlying proof that they are warranted.

Your statement that clearly there is someone being battered somewhere as justification is simply mind boggling. Right now there is someone somewhere being raped, should we start locking up random men? Because there are unbalanced people out there you think that we should persecute the innoccent?

Your assertion that because this is a matter for the civil courts, therefor there is no penalty against someone who has a false RO placed upon them is 100% inaccurate. A person with a falsely placed RO is restricted in freedom of movement, they can be barred from their home, they can be denied access to financial accounts, denied access to their children and so on. This is only in the short term. In the long term the placement of an RO on their record can seriously hamper their ability for employment, effectively bars them from employment in many government positions. It also can be a reason for denial in activities such as Boy Scouts, school functions etc.

This even if they have done nothing wrong. If there is going to be a system in place that is going to cause difficulties for someone by just a accusation, then there must be a system in place to ensure that an inoccent person isn't caught up in this.

You tell me that the burden of proof for a TRO or RO should be light. I would almost be willing to concede this point IF you also agree that if it can be proven that the person who requested the RO lied and fabricated a story to have one placed that they should face severe penalties. These penalties should include: Contempt, Lying to Law Enforcement and they should be open to a slander suit.

I have no problem with RO's being granted in cases that warrant them. However, the system currently in place allows RO's to be used maliciously and that misuse can cause significant harm.

If you think that my belief that RO's are used as weapons against men and are put in place under false accusations is BS, I encourage you to do a quick google search. Read the stories of those falesly accused, see if those stories don't sound amazingly similiar. I would also bet that if you became a victim of a false accusation and had your good name tarnished as a result, your view would be a bit different. It is easy to get caught up in the "good cause" mentality of the issue, without taking the time to understand the terrible effects caused by the abuse of the system.

Fotheringay-Phipps
08-22-2011, 09:11 AM
My criminal-triggered TRO against the offender resulted in: 10 months of monitoring (bet that was uncomfortable in the summer months...), a trial (in which a jury of our peers found him 'not guilty' to the surprise of the assistant DA) a hefty bill for the offender, six days in jailSo if I'm understanding you correctly, this guy got 10 months of monitoring, a hefty bill, and six days in jail, despite not being found guilty of anything.

Now you've said that he was in fact guilty, and this may well be true, and obviously no one here is any position to challenge you about this. But what does seem to be the case from your own story is that beneficiaries of TROs are in a position to inflict enormous harm on the subjects of these orders, despite the very low threshold of proof required.

Again, in your case, this may have been justified if the guy was a creepy jerk as you say. But in general, what you've written appears to be confirmation that the legal system is heavily stacked in this area, and gives ostensible victims power to inflict enormous damage on their supposed abusers, whether their stories are true or not.

[Unless you've left out some details in your story above.]

WhyWhyWhy
08-23-2011, 04:09 AM
You said it was a battered women's shelter. Clearly there was some battery going on somewhere. Why else would you be getting a RO ?


No. I can walk into a stadium but that doesn't make me a football player. I can walk into a museum but that doesn't make me an artist.

Farmer Jane
08-25-2011, 09:46 PM
So if I'm understanding you correctly, this guy got 10 months of monitoring, a hefty bill, and six days in jail, despite not being found guilty of anything.

Now you've said that he was in fact guilty, and this may well be true, and obviously no one here is any position to challenge you about this. But what does seem to be the case from your own story is that beneficiaries of TROs are in a position to inflict enormous harm on the subjects of these orders, despite the very low threshold of proof required.

Again, in your case, this may have been justified if the guy was a creepy jerk as you say. But in general, what you've written appears to be confirmation that the legal system is heavily stacked in this area, and gives ostensible victims power to inflict enormous damage on their supposed abusers, whether their stories are true or not.

[Unless you've left out some details in your story above.]

It isn't normal for a guy to get an ankle monitor for something like this for months unless the prosecution and judge had very good reason to request/grant it. And they did. Generally it is temporary and comes off quickly, but because of the pre-trial evidence, it stayed on him as many times as the trial was postponed by his atty. (Actually, I take this back. It may have been 6 months with the thing on - November through the following summer.)

Again, this was criminal and the RO was triggered automatically. And I sincerely do believe that that ankle monitor saved me more grief.

I didn't inflict any abuse on the man. For chrissake, I was the one who got mangled.

Farmer Jane
08-25-2011, 09:50 PM
No. I can walk into a stadium but that doesn't make me a football player. I can walk into a museum but that doesn't make me an artist.

If you walk in to a stadium, you are probably there to see a show. If you go to a museum, you are probably going to get info about what you are seeing.

My point was that battered women's shelters take these women at their word and have seen the worst. Of course they encourage TROs. They're in the business of protecting women from abusers. Derh.

Farmer Jane
08-25-2011, 09:54 PM
[QUOTE=obbn;14166819] I will give you briefly some reasons for a woman to get a RO under false pretense:

I didn't ask.
[QUOTE]
Your statement that clearly there is someone being battered somewhere as justification is simply mind boggling.

That's not my statement.

Right now there is someone somewhere being raped, should we start locking up random men? Because there are unbalanced people out there you think that we should persecute the innoccent?

Huh?

Your assertion that because this is a matter for the civil courts, therefor there is no penalty against someone who has a false RO placed upon them is 100% inaccurate.

I do not make this claim.


This even if they have done nothing wrong. If there is going to be a system in place that is going to cause difficulties for someone by just a accusation, then there must be a system in place to ensure that an inoccent person isn't caught up in this.

It's called a trial.

You tell me that the burden of proof for a TRO or RO should be light. I would almost be willing to concede this point IF you also agree that if it can be proven that the person who requested the RO lied and fabricated a story to have one placed that they should face severe penalties. These penalties should include: Contempt, Lying to Law Enforcement and they should be open to a slander suit.

Sure.

I have no problem with RO's being granted in cases that warrant them. However, the system currently in place allows RO's to be used maliciously and that misuse can cause significant harm.

I can accuse you of anything right now. In some states, for a violent or sexual crime, you'd automatically be arrested. It doesn't mean you'll be tried.

I would also bet that if you became a victim of a false accusation and had your good name tarnished as a result, your view would be a bit different. It is easy to get caught up in the "good cause" mentality of the issue, without taking the time to understand the terrible effects caused by the abuse of the system.

I was a victim of a false report. :smack:

Bloodless Turnip
08-25-2011, 10:11 PM
Not all women get RO's when they ask for one, and not all crazy vindictive nuts who clear out the joint accounts are women.

How do I know? I lived it. I can tell you another thing - No money? No counsel. You are shit out of luck.

ralph124c
10-23-2011, 01:34 PM
My friend has actually been contacted by the woman who took out the restraining order (against him).
What happens to a person who violates a RO in such fashion?

Wesley Clark
10-23-2011, 07:16 PM
My friend has actually been contacted by the woman who took out the restraining order (against him).
What happens to a person who violates a RO in such fashion?

I don't know. That happened to me once. A long time ago I liked a girl and gave her a note where I came on too strong (I was young and pretty socially inept, but that was over a decade ago). She panicked and the police came after me. I never broke the law and was never convicted or booked of a crime, but the police said I had a restraining order (the police lied to me tons of times that night though, so I have no idea if I ever even had a restraining order or if that was another lie. I never went to court and when I called to follow up a year later they said there was no record. To this day I have no idea if I ever even had a TRO, and I don't even know if my interrogation counted as an arrest. I think not since I wasn't booked, read my rights or handcuffed).

Anyway, after that the woman who took it out started sending me emails and making phone calls despite me asking her to stop on multiple occasions. But I was terrified of the police (cops are extremely thuggish when the whole 'innocent dove woman/big bad man dynamic' is activated in their reptilian brains), so I never reported it. I was way more scared of the police than I was of her.

I still have a lot of resentment about that. She committed a crime against me that the police were trying to accuse me of doing to her (harassment and stalking). An objective, professional, trustworthy cop is worth his weight in gold and I would've loved to have had access to one throughout this whole situation. We need more of them and less of these authoritarian ex-marines with chips on their shoulders.

Fotheringay-Phipps
10-24-2011, 09:16 AM
My friend has actually been contacted by the woman who took out the restraining order (against him).
What happens to a person who violates a RO in such fashion?As noted earlier in this thread, unless she is specifically barred from contacting him in the order - which will generally not be the case - she can contact him as much as she likes and she is not in violation of anything. By contrast, if he responds to her initiative, he is in violation and can go to jail.

People who are the subjects of ROs are advised to hang up the phone immediately if they are called by the protected person, for example - otherwise they can go to jail even if the call was initiated by the other party.

I would have to imagine that in the real world a prosecutor is somewhat less likely to prosecute, and possible a judge less likely to convict, if it's clear that the contact was initiated by the protected party. But there are no guarantees, and people can and have been convicted for such contact.

robert_columbia
10-25-2011, 04:13 PM
Here's the relevant portion:
(g) It shall be unlawful for any person -
(8) who is subject to a court order that -
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that
would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C) (i) includes a finding that such person represents a
credible threat to the physical safety of such intimate partner
or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury....
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
Note the "possess in or affecting commerce" portion. The "commerce" reference isn't precisely about sales, it's more of a nod to the commerce clause (http://en.wikipedia.org/wiki/Commerce_clause) to affirm that Congress has the power to regulate firearms.

The warning that the respondent cannot possess firearms is included on all protective orders we issue, in clear language. The only exception is for people who are actively-employed police officers at the time the order is issued.

Would having a gun at home be considered possessing it "in or affecting commerce"?

David42
10-26-2011, 07:58 PM
As noted earlier in this thread, unless she is specifically barred from contacting him in the order - which will generally not be the case - she can contact him as much as she likes and she is not in violation of anything. By contrast, if he responds to her initiative, he is in violation and can go to jail.

People who are the subjects of ROs are advised to hang up the phone immediately if they are called by the protected person, for example - otherwise they can go to jail even if the call was initiated by the other party.

I would have to imagine that in the real world a prosecutor is somewhat less likely to prosecute, and possible a judge less likely to convict, if it's clear that the contact was initiated by the protected party. But there are no guarantees, and people can and have been convicted for such contact.

The unclean hands doctrine should be invoked. This means that a party cannot invite activities of which they then complain.

David42
10-26-2011, 08:13 PM
this thread would be a whole lot more clear if people mentioned what kind of TRO they are discussing.

In my state, Kansas, at the state court level I can think of five different types without researching it--those made within divorce cases, under the Protection from Abuse act, under the Protection from Stalking act, under the common law Injunction article, and as conditions of bond in a criminal case.

under the Protection from Abuse act and under the Protection from Stalking act in Kansas an interlocutory appeal is useless because trial on the merits occurs within twenty days by legislative mandate. These cases are also at the MAgistrate level, and the only appeal is de novo, meaning the entirety of it is heard over and anything at the lower level is irrelevant (unless you have a transcript of it, whereby you can impeach testimony.

Analysis would vary accordingly.

Other points--If you win a restraining order case that someone filed against you falsely, you can sue for malicious prosecution, which means someone falsely initiated court process against you. You wouldn't be able to do this in say a divorce case where you beat the restraining order part but a divorce was granted anyway.

If someone uses process for an object not intended by the legislature or courts, such as the example of extorting money, they can be sued for abuse of process. You do not have to win the original case.

You cannot sue for slander for any pleading to a court because it is protected speech.

I have never heard of a civil tort for perjury, but that seems an appropriate redress. Perhaps I will write my legislator again. : )

Too many people just blow a restraining order off thinking it means little, as they weren't going to be contacting that person anyway. If more of us took appropriate action, there would be less abuse of abuse going on.

People please keep in mind that laws on these kinds of abuse orders vary state by state and that makes it impossible to opine on various points asserted without knowing what state the action occured in.

Ludovic
10-26-2011, 08:23 PM
nvm

Fotheringay-Phipps
10-28-2011, 12:20 PM
The unclean hands doctrine should be invoked. This means that a party cannot invite activities of which they then complain.I think prosecutors can pretty much do whatever they want in this regard. And WRT domestic abuse specifically, there is a big move these days to disregard the wishes of victims in deciding whether to prosecute - the thinking is that many women are reluctant to leave their batterers and should be protected over their own objections. So the prosecution is not prosecuting because of the complaints of the protected party. They're prosecuting because they need to protect the protected party, whether they like it or not.

The protected party can go to a hearing in support of lifting the RO, but while their request may be given considerable weight, it's by no means a sure thing that it will be granted.

David42
11-02-2011, 10:26 AM
I think prosecutors can pretty much do whatever they want in this regard. And WRT domestic abuse specifically, there is a big move these days to disregard the wishes of victims in deciding whether to prosecute - the thinking is that many women are reluctant to leave their batterers and should be protected over their own objections. So the prosecution is not prosecuting because of the complaints of the protected party. They're prosecuting because they need to protect the protected party, whether they like it or not.

The protected party can go to a hearing in support of lifting the RO, but while their request may be given considerable weight, it's by no means a sure thing that it will be granted.

Well, yes this is true in one type of restraining order, which for the purposes of legal analysis could be designated as "bond condition" or "probation condition," depending on whether it's pre or post-conviction. At any rate, since this kind of restraining order is under criminal jurisdiction it is not the equitable relief that many TROs are, such as the streamlined procedures often called "Protection from Abuse" or "Protection from stalking" or even an injunction under the common-law injunctive statutes.

In these cases under the jurisdiction of equity, the victim is the one prosecuting the matter, and in those cases the clean hands doctrine is applicable, and the court should be made aware when someone clamoring for relief is actually inviting the behavior they complain of. anybody with this problem should plead unclean hands as generally you are not entitled to relief in equity if your hands aren't "clean."

Not all plaintiffs mean harm when they call the person they supposedly need protected from. Often women us these kinds of orders to put themselves in complete control of the relationship to teach their man a lesson. They abuse the courts as "relationship police" meant not to sever a relationship but to control it on the woman's terms.

Meet America's modern "empowered" woman.

Bloodless Turnip
11-02-2011, 10:45 AM
Meet America's modern "empowered" woman.

Yes, we should definitely go back to the days when women had zero protection.

David42
11-03-2011, 12:17 PM
Yes, we should definitely go back to the days when women had zero protection.

Of course that's a far cry from what I said. I'm decrying the abuse of restraining orders, not advocating some return to a time when women had no rights.

But you're not alone in thinking that rights for women means its within their rights to abuse the court system and their defendants.

obbn
11-03-2011, 07:45 PM
Of course that's a far cry from what I said. I'm decrying the abuse of restraining orders, not advocating some return to a time when women had no rights.

But you're not alone in thinking that rights for women means its within their rights to abuse the court system and their defendants.

David, glad to see you join the thread. I thought that this one died a while ago. It is impossible to try to point out to activist that TRO's are used all the time not for protection, but as punishment to the ones receiving them.

And, if you point this out you are all of a sudden labeled as "supporting violence" against women, or not caring about women in the least. You will never ever be able to get one of them to admit that it might be possible that TRO's are sometimes used in an abusive way. They will retort that it doesn't matter if one or two men have their lives destroyed as long as women are protected. Those of us who have suffered from a false allegation are nothing more than "collateral damage". But no amount of reasoning will let the logic shine through. See my posts up thread and see the responses by some, it will boggle the mind.

Bloodless Turnip
11-04-2011, 10:23 AM
David, glad to see you join the thread. I thought that this one died a while ago. It is impossible to try to point out to activist that TRO's are used all the time not for protection, but as punishment to the ones receiving them.

And, if you point this out you are all of a sudden labeled as "supporting violence" against women, or not caring about women in the least. You will never ever be able to get one of them to admit that it might be possible that TRO's are sometimes used in an abusive way. They will retort that it doesn't matter if one or two men have their lives destroyed as long as women are protected. Those of us who have suffered from a false allegation are nothing more than "collateral damage". But no amount of reasoning will let the logic shine through. See my posts up thread and see the responses by some, it will boggle the mind.

This might just be because you never have an alternative to offer.

No one denies that restraining orders are sometimes abused, and this abuse has the consequence of making it harder for those who need one for legitimate reasons to get one (been there, done that).