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  #1  
Old 08-10-2011, 07:04 PM
ralph124c ralph124c is offline
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Can You Appeal A Restraining Order?

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?
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  #2  
Old 08-10-2011, 07:15 PM
Whack-a-Mole Whack-a-Mole is offline
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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.
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  #3  
Old 08-10-2011, 07:17 PM
Joey P Joey P is online now
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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.
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Old 08-10-2011, 08:10 PM
ratatoskK ratatoskK is online now
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If he has no contact of any kind with her, why does he care if there's a restraining order?
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Old 08-10-2011, 08:27 PM
kaylasdad99 kaylasdad99 is online now
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Why? Good question...

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.
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  #6  
Old 08-10-2011, 08:32 PM
Al Bundy Al Bundy is offline
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What's missing here?

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.
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  #7  
Old 08-10-2011, 08:40 PM
jtgain jtgain is online now
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Quote:
Originally Posted by Whack-a-Mole View Post
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.
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Old 08-10-2011, 08:53 PM
kaylasdad99 kaylasdad99 is online now
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Originally Posted by jtgain View Post
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.
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Old 08-10-2011, 09:11 PM
jtgain jtgain is online now
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Originally Posted by kaylasdad99 View Post
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)
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  #10  
Old 08-10-2011, 09:13 PM
kaylasdad99 kaylasdad99 is online now
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Thanks for fighting some ignorance today, jtgain!






ETA: Still weird, though.

Last edited by kaylasdad99; 08-10-2011 at 09:15 PM..
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  #11  
Old 08-10-2011, 10:03 PM
obbn obbn is offline
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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.
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  #12  
Old 08-10-2011, 10:12 PM
Fubaya Fubaya is offline
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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."
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Old 08-11-2011, 06:38 AM
LouisB LouisB is offline
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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.
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Old 08-11-2011, 08:52 AM
jtgain jtgain is online now
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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.
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  #15  
Old 08-11-2011, 09:07 AM
EmAnJ EmAnJ is offline
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Originally Posted by obbn View Post
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.
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  #16  
Old 08-11-2011, 09:36 AM
anson2995 anson2995 is offline
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Quote:
Originally Posted by jtgain
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.
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  #17  
Old 08-11-2011, 09:49 AM
Turek Turek is online now
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Quote:
Originally Posted by anson2995 View Post
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.
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  #18  
Old 08-11-2011, 09:58 AM
ralph124c ralph124c is offline
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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!
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Old 08-11-2011, 10:09 AM
kenobi 65 kenobi 65 is offline
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Originally Posted by ralph124c View Post
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).
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Old 08-11-2011, 10:18 AM
Elendil's Heir Elendil's Heir is offline
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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.

Last edited by Elendil's Heir; 08-11-2011 at 10:21 AM..
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  #21  
Old 08-11-2011, 10:55 AM
Romeo and Whatsherface Romeo and Whatsherface is offline
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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.
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  #22  
Old 08-11-2011, 11:01 AM
LouisB LouisB is offline
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Originally Posted by anson2995 View Post
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.
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  #23  
Old 08-11-2011, 12:15 PM
Elendil's Heir Elendil's Heir is offline
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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.
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Old 08-11-2011, 12:35 PM
Fotheringay-Phipps Fotheringay-Phipps is offline
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Originally Posted by Romeo and Whatsherface View Post
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.]
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  #25  
Old 08-11-2011, 12:35 PM
anson2995 anson2995 is offline
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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.
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Old 08-11-2011, 02:26 PM
Max Torque Max Torque is offline
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Originally Posted by anson2995 View Post
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:
Code:
(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 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.
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  #27  
Old 08-11-2011, 02:42 PM
hajario hajario is online now
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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.
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Old 08-11-2011, 05:21 PM
Fubaya Fubaya is offline
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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.
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Old 08-11-2011, 05:29 PM
AndyLee AndyLee is offline
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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?
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Old 08-11-2011, 07:24 PM
Farmer Jane Farmer Jane is offline
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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.
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Old 08-11-2011, 07:26 PM
Farmer Jane Farmer Jane is offline
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Originally Posted by AndyLee View Post
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.
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Old 08-11-2011, 08:15 PM
hajario hajario is online now
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Originally Posted by CitizenPained View Post
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.)
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Old 08-11-2011, 10:46 PM
obbn obbn is offline
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Originally Posted by CitizenPained View Post
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.
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  #34  
Old 08-11-2011, 10:56 PM
Airman Doors, USAF Airman Doors, USAF is offline
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Originally Posted by ratatoskK View Post
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.

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.
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Old 08-11-2011, 11:14 PM
Rigamarole Rigamarole is offline
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Originally Posted by CitizenPained View Post
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.
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Old 08-12-2011, 08:43 AM
Fotheringay-Phipps Fotheringay-Phipps is offline
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Originally Posted by CitizenPained View Post
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.)

Quote:
Originally Posted by Rigamarole View Post
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.
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Old 08-12-2011, 10:23 AM
JoelUpchurch JoelUpchurch is offline
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Originally Posted by hajario View Post
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.
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  #38  
Old 08-12-2011, 10:43 AM
Elendil's Heir Elendil's Heir is offline
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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.
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Old 08-12-2011, 10:57 AM
hajario hajario is online now
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Originally Posted by JoelUpchurch View Post
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.
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  #40  
Old 08-12-2011, 11:22 AM
JoelUpchurch JoelUpchurch is offline
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http://www.8newsnow.com/story/648610...estic-violence

What I find interesting was the last line:

Quote:
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.
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Old 08-12-2011, 11:46 AM
Really Not All That Bright Really Not All That Bright is online now
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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.
Quote:
Originally Posted by anson2995 View Post
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.

Last edited by Really Not All That Bright; 08-12-2011 at 11:47 AM..
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  #42  
Old 08-12-2011, 03:07 PM
obbn obbn is offline
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Originally Posted by JoelUpchurch View Post
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.
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Old 08-12-2011, 03:22 PM
Max Torque Max Torque is offline
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Originally Posted by JoelUpchurch View Post
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.

Quote:
Originally Posted by CitizenPained View Post
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.
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Old 08-12-2011, 03:24 PM
Fotheringay-Phipps Fotheringay-Phipps is offline
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Originally Posted by obbn View Post
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.
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Old 08-12-2011, 03:27 PM
Fotheringay-Phipps Fotheringay-Phipps is offline
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Originally Posted by Max Torque View Post
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.)
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Old 08-12-2011, 04:09 PM
obbn obbn is offline
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Originally Posted by Fotheringay-Phipps View Post
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.
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Old 08-12-2011, 07:13 PM
Claire Beauchamp Claire Beauchamp is offline
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Originally Posted by obbn View Post
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.
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Old 08-12-2011, 07:56 PM
jtgain jtgain is online now
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Originally Posted by Claire Beauchamp View Post
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.
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Old 08-12-2011, 07:59 PM
jtgain jtgain is online now
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Originally Posted by Max Torque View Post
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.
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Old 08-12-2011, 08:51 PM
JoelUpchurch JoelUpchurch is offline
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Quote:
Originally Posted by Max Torque View Post
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_H...er#cite_note-7

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