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A judge issued a Domestic Violence restraining order

prohibiting me from seeing my...
A judge issued a Domestic Violence restraining order prohibiting me from seeing my children. He did so for no reason whatsoever, did not allow a hearing, and such order was not requested by anyone. The Judge was temporary, and had no knowledge of our divorce case at all. I have no history of violence of any kind. I'm sure you think I'm kidding, but I'm not. I've exhausted my options at the state level, and would like to bring a Constitutional Challenge in Federal Court, challenging California's Domestic Violence Prevention Act, As Applied. Please refer me to someone that can help. Thanks.
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Answered in 3 hours by:
9/6/2017
S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2,567
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
Verified

Can I ask why you're challenging the domestic violence act, when your defense seems to be that they did not follow the act or provide you with due process? I understand that you said, "as applied," but were they actually applying the act? It sounds more like they just made up their own rules.

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Customer reply replied 10 months ago
Indeed, the Family Court is just making up its own rules. Specifically, the latest Temp. Judge has stated that the first Temp. Judge issued the Restraining Order "on the Court's own motion". Neither the DVPA nor any case law I find authorizes the Court to issue an un-requested "Stay-Away" Order, and certainly not without good cause. The Family Court is applying the DVPA so as to deprive me of Substantive Due Process, Procedural Due Process, and Equal Protection. My understanding (limited though it may be) is that the method by which an injured party may challenge a Court "making up their own rules" is by challenging the constitutionality of the statute, "as applied". If you can think of something else, I am all ears.
I cannot. I'm surprised you lost at the appellate level though. Did the appellate court say why? Did you appeal to the California Supreme Court?
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Customer reply replied 10 months ago
The Appeals Court ruled that I was trying to appeal a continuance, thus, a non-appealable order. This is bizarre beyond words, because I appealed an injunction, appealable by statute. I filed a Petition for re-hearing, which was summarily denied.
When was that?
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Customer reply replied 10 months ago
Please, if there is any attorney out there willing to bring a Constitutional Challenge, please contact me. My name is ***** ***** email is acebaker1234 [at] yahoo [dot] com.
Customer reply replied 10 months ago
The appeal was filed January 2017, fully briefed by May 2017, dismissed in July 2017. The Petitionfor rehearing was filed just a few days later, denied the day after that. If you need all the exact dates, I can get that in an hour or so.
N Cal Attorney
N Cal Attorney, Attorney
Category: Family Law
Satisfied Customers: 9,788
Experience: since 1983
Verified

New Expert here.

Thank you for your question.

I would file a motion in the Superior Court to vacate the order as void under CCP § 473(d).

"The court's inherent power does not extend so far as to encompass an order without a petition to serve as a vehicle for that order. (Cf. Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513, 1517 [238 Cal.Rptr. 172]

An order refusing to dissolve an injunction is appealable, see https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=904.1.

The DVPA has no provision for the Court to make such an order without a petition filed by the person or persons to be protected. The lack of prior notice was a violation of your right to due process of law and the failure to follow the statutory procedure was also a due process violation.

Please follow up on this with a local attorney.

I hope this information is helpful.

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Customer reply replied 10 months ago
Dear N Cal Attorney, thank you very much. I will bring a § 473(d) Motion to Vacate, and thanks for the Marquez cite.

Thank you for using Just Answer.

If you are satisfied, please remember to rate my answer as 3 or above; otherwise my time here is not compensated.

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According to United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 913 ex parte TROs including a prior restraint on speech are void. According to Flood v. Goldstein Co. (1910) 158 Cal. 247, at 250 ex parte evictions are void. According to New York Times Co. v. United States (1971) 403 U.S. 713, prior restraint of speech is presumptively unconstitutional. Under Blazel v. Bradley (W.D. Wis. 1988) 698 F.Supp. 756, the DVPA violates federal due process requirements. The DVPA is overbroad in violation of the First Amendment. Ketchens v. Reiner (1987) 194 Cal.App.3d 470; City of Houston v. Hill (1987) 482 U.S. 451, 458 et seq. The DVPA is void for vagueness in violation of the due process clause of the Fourteenth Amendment. Kolender v. Lawson (1983) 461 U.S. 352.

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Customer reply replied 10 months ago
Dear N Cal Attorney - Now you jumped the shark. California's DVPA was passed in 1993, so your most recent cites are incorrect. I looked up Kolender, it was a loitering law that was void for vagueness, not the DVPA. Please be careful.

Family Code

6203.

(a) For purposes of this act, “abuse” means any of the following:

(1) To intentionally or recklessly cause or attempt to cause bodily injury.

(2) Sexual assault.

(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

(b) Abuse is not limited to the actual infliction of physical injury or assault.

6320.

(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.

(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.

(c) This section shall become operative on July 1, 2014.

The definition is circular, as written the DVPA allows a prior restraint on speech based solely on speech, and that is overbroad IMHO. The DVPA as written includes writing a letter within the definition of abuse. If that is not over broad I don't know what would be.

The DVPA is a sacred cow and judges are reluctant to rule that it has constitutional deficiencies. When I researched this a few years ago, the California Supreme Court had never ruled on the constitutionality of the DVPA and had only mentioned it once, in a footnote.

There is no published appeal adressing the constitutionality of the DVPA, but the Blazel case is instructive.

When I filed a motion to vacate a DVPA order, it was granted for lack of the required continuance under Ross v. Figueroa but the superior court judge was too timid to properly address the constitutional issues.

The void for vagueness analysis in Kolender v. Lawson remains good law. None of the cases I cited have been overruled.

There are so many problems with the DVPA I urge you to get a constitutional law attorney to assist you.

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False claims of abuse are a national problem and a national scandal, see

http://mediaradar.org

for more information about that.

N Cal Attorney
N Cal Attorney, Attorney
Category: Family Law
Satisfied Customers: 9,788
Experience: since 1983
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