San Jose Divorce Lawyer Comments on Restraining Orders A Court will sometimes grant a restraining order to protect an individual or individuals from alleged and/or threatened harm or harassment caused by another person. In such an action, the person benefitting from the order is the protected person and the person who must comply with the order is the restrained person. The restraining order is regularly used to prevent the restrained person from having physical contact with the protected person. It may also mandate that the restrained individual must not contact the protected person, or appear at their home or place of business. In California Courts are empowered to enact a number of different types of restraining orders. Two forms are the Civil Harassment (CH) order and the CLETS (California Law Enforcement Telecommunications Systems) order. Family Law attorneys deal with CLETS orders more often than CH orders. The jurisdictional requirements to apply for a CLETS order are more limited than the requirements to apply for a CH order. Either type of restraining order may include orders effecting personal conduct, barring contact of the protected party, barring stalking and/or harassment, and/or requiring the restrained party to stay away from the protected party â€“ typically a distance of up to 300 yards. An order that all firearms be turned in is standard. A restraining order may be granted for a variety of reasons. Most frequently, a restraining order is put in place to prevent alleged domestic abuse. Domestic abuse may consist of situations such as assault, battery, burglary, criminal mischief, and/or threats of future violence. In order for a CLETS order to be granted, a close, specific relationship must exist between the parties involved. That is, the parties should be spouses or former spouses who are separated, divorced, or seeking a divorce or people who have shared a common living space. Additionally, parties who have been engaged or have dated may also obtain a CLETS restraining order. Parents may also be able to obtain a restraining order on behalf of their children. Currently, the burden of proving your need for a CLETS order may be much less than it should be. On minimal evidence, and sometimes only on allegations made to the Court with no independent proof at all, the restrained party can have multiple fundamental Federal Constitutional rights taken away (right to bear arms (Amendment II), right to be secure in your person, papers and effects (Amendment IV), right to not have the government take your property (Amendment V)). The Courts regularly disrespect those rights when hearing a CLETS case. Because the Family Court will also sometimes not enforce all the rules of evidence, particularly where both parties are in pro per and have
no idea what the basic rules even are, the combination of easy proof and draconian results is certain to lead to substantial abuse and overreaching. It is helpful to remember what the Court is usually thinking â€“ that if the Court denies the order and the abuser then kills or harms the party that sought the order the Court will be blamed, but if the Court grants an order when it should not have there will probably be no serious complaints. Also, it is good to understand that in most true Domestic Violence situations both parties have engaged in abuse that could be restrained, and the Courtâ€™s interest is just in keeping those two people apart, so nothing unfortunate will happen. Many alleged Domestic Violence situations also lack anything to garner any sympathy for the person who might be falsely accused, like when the 25 year old mail order bride files a CLETS to kick her 45 year old husband of just a few months out of his house, so she can live rent free and get a Green Card. If a CLETS has been filed against you, you should strongly consider hiring competent legal counsel. Having a CLETS order in place is a serious matter, and it can have far-reaching consequences for many issues, including child custody (SEE FC 3044(a)) and spousal support (SEE FC 4320(i) & (m)). The restrained individual may not be able to go to certain places and may not be able to engage in certain activities. Further, such an order regularly means that the restrained person has to move out of their home, often even when they are on the deed, the other party is not on the deed, and they are the only one who has ever made a house payment. CLETS orders are quasi-criminal, and the police can access the record from their patrol cars. The publicly available record may cause you to lose that great job opportunity, or may be used against you in any future litigation. As a San Jose family lawyer, Thomas Chase Stutzman is ready to assist clients if they are concerned for their personal safety and feel that a restraining order is an appropriate step. Among San Jose divorce attorneys, the Law Offices of Thomas Chase Stutzman is particularly well qualified to help clients protect themselves and their families when it matters most. If you are looking for a divorce lawyer in San Jose, contact our office to set up a free half-hour consultation. We provide carefully considered counsel that is based on our many years of experience working with clients as Bay Area divorce lawyers. During divorce proceedings the court may grant restraining orders, for this you need experienced attorney. San Jose divorce attorneys, the Law Offices of Thomas Chase Stutzman has experienced and well qualified to help clients protect themselves and their families when it matters most. If you are looking for a divorce lawyer in San Jose, contact our office to set up a free half-hour consultation.
Published on Jul 4, 2012
The restraining order is used to prevent the restrained person from having physical contact with the protected person. San Jose Divorce lawy...