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socrateaser
socrateaser, Lawyer
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My son has just been served with Restraining Order & Notice

Resolved Question:

My son has just been served with 'Restraining Order & Notice of Hearings' (DV-110); my husband demands my son stays away from property of him as well as his mother's. Also the form includes me as a person who needs a protection (from my son). Personal statement is also attached, but information is falsified, I believe, intentionally.

My husband threatened me several times, telling he would get rid of my son and then, in turn, of me.

The hearings scheduled shortly, for October 6th.

What is the best thing to do or strategy to follow?
Submitted: 7 years ago.
Category: Legal
Expert:  socrateaser replied 7 years ago.

A temporary DV order is made based upon the written declaration of the petitioner and nothing else. If the facts are materially false, you can, not only have the order dismissed, but you can request sanctions against the petitioner, under Code Civ. Proc. 128.6 and 128.7, for attorney's fees, costs of suit and to discourage future frivolous conduct.

 

Your husband would have had to provide you with 24 hours notice of the ex parte hearing from which the DV order was issued. Not doing so, is also sanctionable, and lying about it, like lying on the attached declaration, could be prosecuted by the district attorney as perjury.

 

BotXXXXX XXXXXne: if you go to court and testify that your husband's declaration is false, then the judge may just "throw the book" at your husband.

 

However, between now and the date of the hearing, your son must stay away, because he can be arrested for violating the court order -- even if it is later dissolved in his favor.

 

I STRONGLY recommend that you and your son each get a lawyer to represent you at this hearing. For a family law attorney referral, see: http://www.abanet.org/legalservices/lris/directory/main.cfm?id=CA and www.martindale.com.

 

One more note: there are a lot of experts here who are not California licensed attorneys, and who will purport to understand California law. Be very careful about accepting their answers, unless they cite the legal authority for their contentions. California law is much more complicated than any other jurisdiction in the U.S., and I cannot tell you how many times every day, that I read an answer from a non-California lawyer that is simply wrong.

 

Hope this helps.

 

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Customer: replied 7 years ago.
Well, several things to clarify.

1st: How my son should deal with Answer to Temporary Restraining Order? Should he point he disagrees with the facts? Should he attach the declaration of his own? Shall the answer be served to petitioner or directly to the judge?

2nd: It is unlikely my son will be able to get a lawyer, so... as I understand, he has to defend himself then?
Expert:  socrateaser replied 7 years ago.

How my son should deal with Answer to Temporary Restraining Order?

 

A: He may simply state his version facts in the answer.

 

Should he point he disagrees with the facts?

 

A: Absolutely.

 

Should he attach the declaration of his own?

 

A: That's typically how it's done, because the original form doesn't have sufficient space to respond.

 

Shall the answer be served to petitioner or directly to the judge?

 

A: It must be filed with the family court clerk, and served with a proof of service by mail on the opposing party, or his attorney, if an attorney is designated in the DV order.

2nd: It is unlikely my son will be able to get a lawyer, so... as I understand, he has to defend himself then?

 

A: Yes. Everyone has the right to defend themselves without a lawyer/attorney. Most people screw it up, though, because they are too emotional to advance their own interests without help, and they don't know the law.

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Customer: replied 7 years ago.
Ok, I have the very last questions.

1) The sequence is following: my son completes the response (DV120) with the declaration of his own attached. Then he goes to the court and files it there with clerk and also sends a copy of response to my husband by registered mail/with delivery proof. Am I correct here?

2) What if my husband doesn't get served until the hearings?

3) Is it Ok, if my son gets an attorney after filing the response?
Expert:  socrateaser replied 7 years ago.

1) The sequence is following: my son completes the response (DV120) with the declaration of his own attached. Then he goes to the court and files it there with clerk and also sends a copy of response to my husband by registered mail/with delivery proof. Am I correct here?

 

A: Yes, except, make sure there is a proof of service by mail, which means that the DV120 must be stuffed in the envelope by someone other than your son, who is an adult and who signs the proof of service. Also, ordinary first class mail is sufficient service.


2) What if my husband doesn't get served until the hearings?

 

A: Then, the answer may not be admitted into evidence. But, he can still testify in person. Since the hearing is so soon, you may want to have someone personally deliver the answer to your husband -- someone other than you or your son.

3) Is it Ok, if my son gets an attorney after filing the response?

 

A: It's legally permitted, but not a particularly good plan, because a lawyer may be able to make the response more understandable for the judge.

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