Legal Question in Family Law in California

Temporary Restraining Order

In reference to a TRO I had against my ex-husband to protect myself and my children I was mistaken by the date mailed to me on the date for mediation. The case had been ongoing for 2 years and my ex had finally obtained counsel at the advice of the judge. The ocurt date was 7/15 and the mediation was set for 7/18. Our mediation was always on the same day as our court date and I thought our date was the 18th as described in the letter I received from the Superior Court. Unfortunately, my ex's attorney (not he) showed up on 7/15 and since I was not there the TRO was dissolved which would now put the old court orders back in force. This means that my children may be forced to visit their father who before the TRO was put in place threatened them with death, hit them etc. When I went before the judge on 7/18 and had filed for another restraining order explaining my mistake with the date and showing him the letter, he told me to file for a movement to restore to calendar. Maybe I need to vacate the judgement? How do I do this? What forms do I file? My children are almost 17 and 18 but may still by court order be forced to go with him and they are very afraid of him. Please advise me.

Asked on 7/20/03, 12:38 am

4 Answers from Attorneys

Wayne Wisong Wayne Wisong, Attorney at Law
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Re: Temporary Restraining Order

Your e-mail does not make it really clear what the exact nature of this proceeding is (child support enforcement, domestic violence action, etc.), but, it sounds like the judge has invited you to file a motion to effectively reconsider the vacating of the earlier order. However, I just don't have enough background on the matter to be sure.

I would strongly recommend that you first thing tomorrow consult with a local family law attorney, as this does not sound like this will be a standard-form type filing, but could expedite matters.

Your children are old enough that if they really believe they will be in danger when and if the time comes to visit with him, if all else fails they should just go into hiding a short time until you can get things straightened out. Of course, this should be something they decide to do, not something you order them to. At their ages, in this situation, I doubt the juvenile authorities will get all worked up about their failing to show.

If they do end up seeing the father, you should definitely alert them that if he starts with the death threats or bashing either of them around, they should simply call 911 as soon as possible, and as invisibly as possible. If he is going to keep acting like that, getting him behind bars will be the most effective way to be time. I seriously doubt the police will leave him there with them if it is his own older children who call and report him for such conduct. They will almost certainly haul him in on the spot.

If you have more questions, please e-mail me at wwisong @earthlink.net.

Although I practice in Georgia, I am a member of the California Bar, so your question was referred to me.

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Answered on 7/20/03, 11:40 am
Wayne Wisong Wayne Wisong, Attorney at Law
0 users found helpful
0 attorneys agreed

Re: Temporary Restraining Order

Your e-mail does not make it really clear what the exact nature of this proceeding is (child support enforcement, domestic violence action, etc.), but, it sounds like the judge has invited you to file a motion to effectively reconsider the vacating of the earlier order. However, I just don't have enough background on the matter to be sure.

I would strongly recommend that you first thing tomorrow consult with a local family law attorney, as this does not sound like this will be a standard-form type filing, but could expedite matters.

Your children are old enough that if they really believe they will be in danger when and if the time comes to visit with him, if all else fails they should just go into hiding a short time until you can get things straightened out. Of course, this should be something they decide to do, not something you order them to. At their ages, in this situation, I doubt the juvenile authorities will get all worked up about their failing to show. When they reach 18, no order can force them to spend time with him anyway, so the child custody and visitation aspects of this family violence situation are rapidly coming to a close.

Since your children are over 14, if they have gainful employment to support themselves in their own residence, they could even file emancipated minor petitions and free themselves of all claims to parental custody, making any custody feuds legally irrelevant. Then, they could not be forced to spend any time with him. Although parental consent or acquiescence is usually required, if he has no legal custody, his consent should not matter.

Even if your children do not qualify for emancipation, they should also consider appearing in this action with their own attorney to contend that they should not be forced to spend any time with him when he has threatened their lives and battered them in the past.

If they do end up seeing the father, you should definitely alert them that if he starts with the death threats or bashing either of them around, they should simply call 911 as soon as possible, and as invisibly as possible. If he is going to keep acting like that, getting him behind bars will be the most effective way to buy time. I seriously doubt the police will leave him there with them if it is his own older children who call and report him for such conduct. They will almost certainly haul him in on the spot.

If you have more questions, please e-mail me with more detailed background information at wwisong @earthlink.net.

Although I practice in Georgia, I am a member of the California Bar, so your question was referred to me.

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Answered on 7/20/03, 11:57 am
Lyle Johnson Bedi and Johnson Attorneys at Law
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Re: Temporary Restraining Order

Mr. Wisong's statement regarding retaining an attorney is right on.

In regard to visitation you must be careful. If you encourage the children to refuse visitation with their father you may be subject to contempt charges. This can be difficult to prove.

The reality is this it is impossible to make a 16 and 17 year child visit with the other parent unless they are willing to do go. When dad comes for a visit you do not have to allow him entry into your home. He will threaten to call the police. Encourage him to call them. When the police arrive they will talk to you and tell you of the serious consequences that can result from denying visitation. Make sure that the police know that you are not denying visitation. Let them talk with the children, out of the presence of father, to avoid intimidation. The police cannot force visitation, especially if they are informed of the prior threats and physical abuse.

The best solution is to get to court immediately and have the restraining order reinstated, if it has been terminated, which seems unlikely. He must have a written court order stating that the restraining order has been terminated.

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Answered on 7/20/03, 2:58 pm
Douglas Bedard Law Office of Douglas Bedard
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Re: Temporary Restraining Order

not in the writs or appeals category

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Answered on 7/21/03, 11:54 pm

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