Custody and TRO Temporary Restraining Orders

Originally posted 1/19/15...updated 2021
Domestic violence related Restraining Orders are a huge problem, and if you either need to fight one, or obtain one, be forewarned-- it's sometimes easy to GET a TRO, and defending against them is best reserved for defense attorneys or at least attorneys who know litigation and not just "settlement." Attorney herein has A very high rate of wins in bringing a Dv Case forward and also in defending errant Dv cases....attorney also has criminal defense experience (i.e., handling gang case, accusations of crimes, criminal informant cases, wrongful DV cases, etc. etc.)
From a defense perspective, very few TRO claims are readily settled--clients are either too upset, too physically harmed, or they made up facts in order to get back at a spouse. Attorney has seen plenty of vindictive TROs over the years. Often Judges just rubberstamp them, and issue them for 3 years.

Beware if you need to defend against a DV TRO, because a spouse or partner can be most difficult to work with. Knowing that, you will need a lot of help to prevail.
Make sure your attorney can properly defend and fight for you.  If not, you stand to lose quite a bit, both financially, and emotionally.   

If the DV TRO is issued against a party, that party cannot presumptively be the custodial parent, especially if criminal charges are filed.

This means that automatically, unless proven otherwise, you are likely out of the picture as custodial parent, even if you already were the custodial parent. This would probably require a trial to change that.  And depending on how bad you lose the case--- you may be in for a real shock to find that you will not be getting what you want visitation wise, especially if you have engaged in physical violence or otherwise illegal conduct which rises to a level that is not acceptable.

Attorney has seen rather worthless DV TRO cases filed, but has also seen plenty of viable cases filed for good cause. IF you have found that a DV TRO was filed against you, be very careful in your methods of trying to solve the problem. Attorney has seen some litigants resort to horrendous behavior that borders on extortion or attempted bribery.

This should never happen and will definitely not make your case easier. If the case is litigated, you better obtain someone who knows family law and restraining orders, and has done a lot of them.

Especially if you actually have caused harm, and it is not disputable, you will be in for a very rude awakening the hard way.
This is not new to attorney herein.  Even if judges have tightened up on handing out DV TROs, the majority of judges know bad or illegal behavior when they see it.

The best defense in such a case is to be prepared ahead of time, not after the fact. Make sure your attorney is not simply focused on settling everything while you lose out. Much of divorce these days requires the ability to litigate for the client. Settling does not always work.

While some cases might result in a modification of the order, many of the cases do not, and many litigants attempting to win at trial on these cases will in fact, lose.

Note: We always notice when there is a spike in readership on TRO DV cases, because the litigants will usually look at attorney's blog for information. This has happened for many years, as attorney has done DV TRO cases for quite some time. DV TRO cases are supposed to be heard by Judges, but if a commissioner is assigned, especially for trial, this normally  requires a specific stipulation  You can check the case of Settlemire in San Luis Obispo. 

DID YOU LOSE YOUR CASE AND DON'T KNOW WHY??

In some instances, clients do lose their cases, especially when it comes to Family law, of that there is little dispute. WHY you may have lost, even if temporarily--can be due to more than several reasons.

Some common issues involve being unprepared, having the wrong evidence, misleading the court, not following the rules, ignoring what Judge had said, not liking the "mediator" and the report, ignoring the court rules for dates (and you missed hearings), having judge yell at you because of some of the above, failing to show up for court, arguing in court after judge told you to stop talking, ignoring the FOAH of the case and doing whatever you wanted instead, failing to provide adequate supervision of kids, allowing kids to be there when drugs are present,

.....allowing a dangerous animal to be with kids and one kid is harmed, failing to tell other parent when child is sick, failing to get child doctor appointments, failing to have the child's teeth fixed, or any other health problems, claiming you were too sick to do something yet you were partying and people put it on Facebook (people should not be using Facebook if they want to win their family law cases..), using drugs then expecting your kid won't see you but he/she sees and rats you out, ignoring the laws re drugs, drinking and partying and allowing children to be there WATCHING you???

NEW CASE, NEW WIN!!

Sometimes we find that certain cases are fairly egregious--meaning that they are bad and worse, and even with several years or many months of waiting and litigation, there is just no good ending?

However, in a recent case, not only was there a great ending, custody (physical) and full LEGAL custody of the minor child was changed from one parent to the other under fairly bad circumstances, and only after both the county and other government agencies decided that the PARENT who had actual physical custody...should likely NOT maintain that custody?

Most of us realize that certain parents are not good parents....and even if given many chances, some parents simply ruin their own kids' lives? Thankfully, in this case, the governnmental agencies got to the bottom of what was actually transpiring, and recommended that the child be moved from the custodial parent, and placed with either family members, or similar? After this occurred, the custodial parent sill did not parent the child effectively, and subjected the child to numerous situations which included living in a place with no electricity, no water, no electrical power, etc. Of course, this is not legal. Instead of getting help, that parent did not rectify the situation.

Often in a case such as this, CPS is forced to take action, obviously. However, if other family members are available, the child can be moved out of the bad situation and be adequately placed with family rather than foster care. When an errant parent then hires an attorney to defend bad behavior, it goes without saying that such tactics are not only wrong, but will likely result in more harm to the child.

Such was the recent case we just saw, but thanks to the cooperation of the family members, and Judge realizing the child should be placed elsewhere, custody (legal/physical) was given to the other parent, with very minimal visitation rights to the former custodial parent!! This is a sad but true scenario...no one likes to see children harmed. In this case with a happy ending, at least one child was saved from further abuse and lack of care from his or her own parent!

Did Your Ex File a Move Away...or Just Left With YOUR Kids!?

Attorney has seen cases where no one files a move away motion and one parent simply takes the kids and takes off!!? 

This is basically illegal in most cases... IF there is no marriage and no Parentage Act case filed, the county usually won't help you until you show them some legal proof that you are the actual parent.It is usually recommended that All parents have a custody ORDER! We have seen abduction cases where a parent goes to Mexico or Germany for example..... and the parent never finds the kids

...

We have also seen criminal informants be awarded custody and the other parent left in the dust?

 IF a parent does move away WITHOUT the children.... that parent would need to petition the court, usually through a divorce or parentage act case, to establish visitation.

IF one parent breaks a current court order and purposely physically removes the children to another location, city, state or country, you will need to notify the abduction unit to see if they will help you.  Normally they help those without attorneys (I say this because on the few times I have been there they did not seem to want to interact with attorneys)...

There are many different scenarios that can transpire but the worst is probably when a parent leaves the  country WITH THE KIDS!!  IF THIS HAPPENS TO YOU...YOU MUST ACT QUICKLY AND CONTACT POLICE AND THE ABDUCTION UNIT IN YOUR CITY!

 

EMOTIONAL SUPPORT ANIMALS--CUSTODY OF ANIMALS--VISITATION+MORE!!

Attorney has worked with animal issues, animal law cases (State and Federal Courts) as well as seizure (criminal) cases, rescue animal cases, alleged theft of animals, and many other cases involving animals in general. Attorney has also won one of the rare, if not only, seizure cases in Hollywood, CA, involving illegal seizure by animal control. And, in California, the criminal law involving seizure of animals is STILL illegal, despite the failure to change PC597.1-- unless there is a new case where someone is willing to step up to challenge the law, the law still remains illegal as applied.

(***YES...this is a real puppy from when we were doing dog rescue....) How do I know all this? My background in animal law spans many years of having worked with and investigated many cases involving bad seizures by various groups, and by knowing that government agencies often do not follow the law correctly. I know because several animal control officers actually attempted to accuse and blame me for something regarding canines, and I had done nothing to break the law, and I did win the hearing. Often animal control may not be your friend, and I know this firsthand because I was heavily involved in watching their misdeeds in more than one or two counties. Dogs, cats, rabbits, horses, you name it.

Unfortunately, seizures of animals used to be commonplace, but as of the last five years, it has become less common. In San Diego, for example, the city actually made an illegal law--and the city attorney I spoke to even agreed the law was illegal. The City passed a ridiculous law which only allowed animal control, rescues, and non profit groups to "sell" animals? The law as written (and I doubt it has NOT been changed) clearly violates the Cartright Act and I believe it enables a potential vertical restraint as applied.

Further, statewide, activists got a law passed which states that only the groups named above (shelters, rescues, 501c3, non profit etc) can sell basically any animal they want, but a pet store in many jurisdictions, cannot do the same? In other words, in CA, one would have to buy (let's say a cat or dog) from a breeder or a private person, but NOT a pet store? The claimed reason for this is because activists believe the sale of pets is really not legal unless THEY do it, then they can sell anything THEY want? Which is why such groups get to sell anything they want inside pet stores while the pet stores themselves cannot do the same??

As for emotional support animals, if sufficiently bolstered by the right data and procedures, this can usually be accomplished. If this is not allowed, it is possible to sue the entity for failure to adhere to the CA law. There is at least one CA published opnion on this. If you have or know someone with an animal who has a legal issue, please feel free to have the person contact me.