Attorney Liz Mandarano wrote in the Huffington Post that the "worst thing" a woman can do, in a family law case, is to use the Domestic Violence Restraining Order protection law to falsely accuse the other party and to gain some of the substantial procedural advantages which are intended for the real victims of domestic abuse. She makes several points in support of her conclusion (as to "worst thing") and the focus on this post will be to report the argument that she makes. Nowhere does the article suggest that the protection that the Domestic Violence Restraining Order process brings to the victim is not needed in our society. Her argument is that the process allows significant abuse to those who act in bad faith.
Ms. Mandarano states that there is little accountability in making domestic violence accusations or allegations. The restraining order process is brought to a conclusion so quickly that there is no opportunity for discovery efforts to test the accuracy of the allegations prior to the final hearing. The restraining order may be used to gain an advantage in a child custody case. As a San Diego Certified Family Law Specialist attorney my office has filed and defended against Domestic Violence Restraining Order cases. "Discovery" is a term for legal procedures of issuing subpoenas, Inspection Demand, interrogatories and conducting depositions. Ms. Mandarano's point is well taken in that these procedures should be allowed prior to the final hearing on a Domestic Violence Restraining Order petition.
The article provides an excellent example regarding a restraining order brought against David Letterman by a woman who claimed that Mr. Letterman was talking in code on his show--speaking in a way that was intended to personally threaten this woman who brought the restraining order application into a New Mexico court. The court initially granted a temporary restraining order based on these difficult to believe allegations. Subsequently another judge denied the restraining order request.
So the article concludes that these restraining orders are too easy to obtain, have dire consequences to the alleged perpetrator, and do not allow the alleged perpetrator to initiate discovery efforts to disprove the allegations prior to trial. This is a well written article and is must read for State legislators around the country. The Domestic Violence Restraining Order laws are extremely important. Real violence is being perpetrated by dangerous individuals however both sides to the case are entitled to due process of law.
The San Diego divorce attorneys at the Law Office of Thomas M. Huguenor, CFLS, handle restraining order and family law cases.
