Is getting restraining orders too easy in California
In my perfect world, Judges take restraining orders seriously. Hospital records, photos and arrest records are scrutinized to determine if there was a serious or a trivial household dispute. That is not my experience.
In this case, the trial judge granted Ms. Avalos a two year order to not be ‘harassed’ by Mr. Perez, who did not even show up in court. If the alleged conduct is serious and recent, usually a court will usually grant a “100 yard stay away.” These orders are granted by a preponderance of the evidence. In my experience, depending on the judge of course, that will too often mean merely that if the judge has the slightest concern that there might be any possibility of risk of harm, they will grant an order for 100 yard stay away and for a full five years.
So for a judge to only grant a mere no harass order to Ms. Avalos, means that the bad actor’s alleged conduct was probably relatively minor or not recent or both. This is evidenced in this case by the lack of evidence of any arrest, conviction or injury. Thus it is likely the alleging party probably did not allege anything serious. Even if she did, there is no allegation of any proof other than her testimony. Of course, if the lady had a good imagination, and willing to lie, that will be admissible evidence, even without a shred of hard proof.
Under this decision, the court of appeal made the decision, that, (even if the original order could be for any time period up to but not exceeding five years, and even though the original order was only for two years), that the court has only three options. A Five year extension, a life time restraining order or an order to deny. Since the man did not bother showing up to court, the court of appeal indicated that under Richie v. Konrad, (2004) 115 Cal.App4th 1275, the court was obligated to grant the request, and had only two choices. Five years or life.
The courts logic is internally sound up to a certain point:
The statute seems to be clear that five years or life are the only options Family Code Section 6345(c).
A person’s rights under the constitution are dependant on them showing up to court and objecting. Sommer v. Martin, 55 Cal.App. 603.
That the court can set aside a judgment only if a public interest or public policy is involved. Bayside Timber Co. v. Board of Supervisors, 20 Cal.App.3d.
In this case, the man did not show up at the appeal either, and the person wanting to set it aside was Ms. Avalos, who was not happy with a mere 2 year restraining order, and wanted a 5 year order. The trial court was set aside for only granting a two year order in a published Court of Appeal decision.
My concern is this.
First, it has been too easy to get a restraining order for quite some time.
Second, that they are now being renewed with a rubber stamp.
Third that these orders ruin lives and infringe upon fundamental liberties
These restraining orders have a very significant effect on a person’s life. They can affect every aspect of a person’s life.
They can very seriously limit employment. Most employers will not employ someone with a restraining order. Thus any employer that does a background check will likely not employ a person with a restraining order. Once a restraining order is granted, the person under the order may not own or possess a firearm. There is no statutory exception for armed security guards, police, military or law enforcement. There is no statutory exception for members of any formal state guard or militia. So paid or volunteer police and military could be out of the question.
These orders very seriously effect someone/s ability to seek primary custody or joint custody. Thus a lousy mother need only make up or over inflate a story of abuse to deprive a child of an otherwise wonderful father. For as long as she can keep the restraining order in place, this seriously hinders the court from neutrally evaluating the best interests of the child. The court’s hands are tied legally.
These orders also pop up in the law enforcement computer. If you get pulled over for a routine traffic stop or other routine police contact, and that pops up, police are definitely going to take a restraining order into consideration in how they deal with you. You are much less likely to be believed or treated with trust.
Last is the right to bear arms. You cannot own or possess a firearm with a restraining order. There is no exception for possessing firearms in your own home or in the case of civil unrest. Most people alive in America have never experienced danger. We have enjoyed now two generations of relative peace in America from invasion, riot, rebellion or terrorism since World War Two. Traditionally, only convicted felons lose the right to bear arms. Now we have created a whole new class of people who cannot bear arms. For life.
