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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12573
Experience:  Attorney experienced in all aspects of family law
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Thursday night my husband and I had a huge fight first time

Customer Question

Hello,
Thursday night my husband and I had a huge fight for the first time but no hitting, only mean words said and some pushing around. My husband is a good man and would never hit me. I'm 7 months pregnant suffering from high blood pressure. So the screaming got me scared especially when he told me that if I didn get out of his face he would kill me and to make him stop I told him I would call the police. He said go ahead and I did.
At the end of my phone call with reporters he police, I told them that my husband calm down and there was no need to come. But they showed up 2 minutes later and arrested him putting a restraining order until December 25th in the evening and that it was the police who decides and judge.
I cried, I told them that I need my husband next to me, that I don't know anybody as I recently moved to this city and the we have doctors appointment twice a week with the doctor and h always comes with me. I can't believe how strict they were. I've managed to bail him out and drop the charges but the restraining order is killing us and putting me and my baby in danger. I'm scared and lonely. And this stupid phone call can ruin our relationship for ever. He didn't deserve to go to jail. He never committed a crime in his life. It was just a fight and he said things that he didn't mean.
We were supposed to paint the baby room this weekend and I'm here alone. The situation is really ridiculous and I have to find a way to remove sooner than the 25th the restraining order so we can celebrate Xmas and stop this non sense.
Can someone help me to get it removed on Monday without waiting for the court date?
Thank you
Submitted: 1 year ago.
Category: Family Law
Expert:  Brandon M. replied 1 year ago.

Hello, my name is Brian. I am a California-licensed attorney and I'm glad to take your question. I'll start by saying that there's not going to be an instant fix for this, but I want to talk about how to keep your situation from spiraling out of control. In which California county did all of this occur?

Customer: replied 1 year ago.
San Francisco
Expert:  Brandon M. replied 1 year ago.

Ok, that's good. Would it be correct to say that this is the first time that your husband has ever been arrested or charged with a crime?

Expert:  Brandon M. replied 1 year ago.

I apologize in advance if any of these questions feel intrusive. I ask, in part, because they will help me to understand how law enforcement and the courts might perceive the situation with your husband.

Customer: replied 1 year ago.
it is his first time
Expert:  Brandon M. replied 1 year ago.

Great. You had mentioned that he had never committed a crime in his life, but that's bit exactly the same as whether he's ever previously been arrested or charged.

Also, it's a little unclear as to what his status is. You said that you managed to drop the charges, but you also mentioned an upcoming court date. When is your court date, and what is the nature of the court date?

Expert:  Brandon M. replied 1 year ago.

Forgive my typo in that last post. I intended to say "that's not exactly the same"... Not "that's bit exactly the same." I apologize for any confusion.

Customer: replied 1 year ago.
the court date is on the 24th, I guess is just a formality for the bail and tell him that the charges were dropped and the he case is closed. I haven't spoke to my husband since the event on Thursday evening and ai don't even know where he is
I feel so angry at myself to have call the police just to scare him. I wish I never did
I'm hope that this nightmare will end as soon as possible and the hat we can find a solution to remove this order as soon as possible
Thank you very much for your help and I hope you can help us
Customer: replied 1 year ago.
he has never committed a crime or being arrested
Expert:  Brandon M. replied 1 year ago.

Part of what confuses and concerns me is that the decision to drop or prosecute a case is made by the District Attorney's Office. The police or sheriff's office will make a report to the DA's office with a recommendation about whether to prosecute, but the DA decided if there's enough evidence to prosecute and, if so, whether justice would be served by prosecuting. So it's certainly possible that the decision has already been made to not prosecute your husband, but who told you that criminal charges wouldn't be filed with the court?

Customer: replied 1 year ago.
The sergeant that I saw yesterday called me back in the afternoon to tell me that the DA has dropped the charges after I signed the paper and I gave the reasons not to press charges
Expert:  Brandon M. replied 1 year ago.

Ok, that's great news. To be straightforward, I was going to say that, without any actual physical injury, the odds of prosecution would ordinarily be very low in a situation like the one you described. Threatening to kill someone can, by itself, rise to the level of a felony in California. It's a very serious crime. However, law enforcement usually has enough good judgment to understand that spouses can make that sort of mistake and that a threat of that nature does not amount to any true danger to the individual being threatened...

Expert:  Brandon M. replied 1 year ago.

So that said...

Expert:  Brandon M. replied 1 year ago.

We have to be realistic about the legal situation here. Although the police have decided to recommend against pressing charges, and although the District Attorney's Office has determined that charges will not be filed, the fact is that your husband screamed at you, threatened to murder you, while seven months pregnant and suffering from pregnancy complications. An organized society cannot allow for that to happen, and there are consequences for those actions. It's fortunate that you can expect this to go no further, but the next time, you both may not be so lucky....

Expert:  Brandon M. replied 1 year ago.

There are three parties involved here. There is you, the "protected" party. There is your husband, the "restrained" party. And there is law enforcement...

Expert:  Brandon M. replied 1 year ago.

The bad news is that out of all three parties, the protected party has the least amount of rights in the situation. Technically, You are not even a you are not even a party to the action… party to the action... You are not facing criminal charges, nor are you restrained from exercising any of your freedoms. If the protected party contacts the restrained party, the protected party has not violated any order or broken any law...

Expert:  Brandon M. replied 1 year ago.

The only thing a protected party can do in the situations, under ordinary circumstances, is make their wishes known to law enforcement. But I have to tell you that it's procedurally inconvenient for law enforcement to amend a restraining order, especially when it's scheduled to expire in less than a week...

Expert:  Brandon M. replied 1 year ago.

Law enforcement, of course, has discretion to request modification of such an order, but they typically won't--they would rather let the order expire naturally after the charges are dropped at the arraignment. They see it as a cooling off period for your husband and they also don't want to be in the business of lifting and re-implementing restraining orders as spouses experience their ups and downs--if someone is going to get them involved, they expect you to really want and need their involvement. They usually won't entertain shortening the order...

Expert:  Brandon M. replied 1 year ago.

Separately, a restrained party can generally file a request for an emergency order to move up a court date. This is called a motion for an "ex parte" (pronounced "ex-par-Tay") order. However, I have to be straightforward that they court will usually not entertain such a request, and will typically do it only if there's a true danger of immediate, irreconcilable harm. I can only help by being completely honest, and the truth is that, with only a week to go, it would rarely make sense to do anything other than wait for the court date--the court can then vacate the restraining order and you can both go back to your lives

Expert:  Brandon M. replied 1 year ago.

So in summation, there would ordinarily be nothing that you, as the restrained party, can do except make your wishes know to law enforcement. Your husband does have a legal option that might be exercised if he can make the right argument, but it would normally just make sense to wait for the week to expire if that's all that's left. He exercised extremely poor judgment, and this was the consequence.

Expert:  Brandon M. replied 1 year ago.

So I wish that I had better news, but I really do have to be direct. Were all of your questions answered? Was I able to answer your question in a way that was informative and helpful as possible?

Expert:  Brandon M. replied 1 year ago.

Well, let me know if further clarification is needed. Thank you!

Customer: replied 1 year ago.
you don't advise me to try to go to court on Monday and try to see if I can see the judge?
I can't stay any longer at home alone and Tuesday we have an important doctor appointment, plus we work together and I will not be able to go to work and I would like to spend Xmas with him
Expert:  Brandon M. replied 1 year ago.

A judge wouldn't see you, unfortunately. It would be procedurally improper and a judge couldn't help you even if s/he wanted to do so.

Customer: replied 1 year ago.
Even if my health is an risk?
Expert:  Brandon M. replied 1 year ago.

Correct. The restraining order is a matter between your husband and law enforcement. You have to understand that even if the restraining order was lifted, the court would have no assurance that your husband would follow through on helping you. They would need to hear from your husband--if you're concerned about getting your husband in trouble by talking to him about this, you can hire an attorney on his behalf and that person could work with him, but I want to again emphasize that a court would need to see an immediate danger of significant, irreparable harm--that's a tough standard.

Customer: replied 1 year ago.
thank you very much for your help and advise
Expert:  Brandon M. replied 1 year ago.

Certainly. Was I able to answer your question to your satisfaction?

Customer: replied 1 year ago.
thank you
I'm so sad of this situation as I love my hlife stand deeply and I'm afraid he won't forgive me
Expert:  Brandon M. replied 1 year ago.

Me too. In the heat of the moment, I don't think your husband realized how serious his word were or the danger he created. I'm just glad that we're not having to discuss how to go about getting the criminal charges against him dismissed. I truly wish a successful end to your pregnancy and that the next week will pass quickly. In the meantime, take care of yourself, and I wish the best.