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NFT: BBI lawyer question regarding restraining order.

mitch300 : 5/18/2023 7:44 pm
So, my stepson has been fighting with his exwife of 6 years continuously. They have 2 children ages 11 and 8. So my stepson who was drinking pretty heavily and finally got him into rehab. However, before that in a stupid(probably when drunk) sends a scathing text to his e wife’s father and 3-4 of her friends saying that she is losing her mind and is a narcissist. ironically if anyone is a narcissist it is him.

Anyway they went to court about two months ago for a restraining order. His exwife and lawyer want to have a trial which the judge granted.

So, the big question, what is the point of a trial. It’s right there in black and white (text) what he texted her friends and dad. There is no dispute from my stepson. Her lawyer says she has 5 witnesses she will be calling. Very confusing from us.
SFGFNCGiantsFan : 5/18/2023 7:49 pm : link
As an aside, people shouldn't be allowed to access their cells when drunk. & I too am talking from personal experience.
RE: ...  
Jim in Fairfax : 5/18/2023 8:17 pm : link
In comment 16119372 SFGFNCGiantsFan said:
As an aside, people shouldn't be allowed to access their cells when drunk. & I too am talking from personal experience.

How would that be enforced exactly?
Not a lawyer  
Jim in Fairfax : 5/18/2023 8:24 pm : link
But this is probably a hearing, not a trial. Your step-son has rights, which can’t be stripped without due process. A judge can issue a very short term restraining order (like 2-3 weeks) without a hearing. But anything longer requires a hearing with evidence and witnesses presented, which the accused has the opportunity to rebut.
I assume the restraining order is temporary  
Gary from The East End : Admin : 5/18/2023 8:33 pm : link
So the hearing is probably to determine whether it should remain permanent. Usually a few abusive, drunken texts wouldn't be enough for a perm order, but that's going to depend on the judge and the jurisdiction.

They're going to want to show a pattern of abusive and potentially dangerous behavior. Your son will want to show that this is an isolated incident and that he is no danger to his ex and her family.

I am not an attorney and this is not legal advice. Your stepson is going to want to speak to his attorney and follow their advice.
Not sure what state your stepson is in  
ciggy : 5/18/2023 9:54 pm : link
But it sounds like the initial hearing was a temporary restraining order TRO.

I can’t tell from your post but it sounds like the TRO may have been granted. The TRO is granted usually based only on the allegations of the party seeking the TRO. Only one side of the story.

Once TRO is in place that would prohibit your stepson from contacting the other party until the hearing for a Final Restraining Order FRO.

The big difference is now at the FRO hearing your stepson can tell his side of the story. One drunken text may not be enough to convince the judge that an FRO is necessary especially if he has completed rehab in the interim. Note that I would not be surprised to hear there are other allegations against him since in my experience one text would not usually result in a TRO unless it was a real doozy with threats of violence. But at the FRO with counsel there may be a number of factual or legal defenses that he can present that could convince a judge not to issue an FRO.

He should definitely consult a lawyer since an FRO can have significant impact especially if it is considered to be a domestic violence restraining order. The laws on this vary from state to state. Consult an attorney asap.

mitch300 : 5/18/2023 10:08 pm : link
To all.
Consult a lawyer asap is the best advice  
Eman11 : 5/19/2023 9:07 am : link
About 25 years ago I was going through a divorce and custody battle. My ex was just being vindictive and tried to get a TRO at our local cop shop. Which they refused to give thankfully because there was no cause.

They had alerted me to this by a formal notice of her being rejected. Well fast forward a couple of days and I was served with one. She ended up going to a county office and lied her ass off, and got one.

Cops told me to not even go to my kids little league game because she could just say I made a threatening gesture or something towards her and they’d have to arrest me.

Got my lawyer on it asap and got an expedited hearing and her case was blown out of the water and dismissed. All told it lasted about a week but it was a stressful one and no way I’d want to live with one of those hanging over my head. Especially with an ex who’s capable of saying and doing anything.

I certainly would’ve been lost without my lawyer and their expertise in handling this. Pennie’s on the dollar and is really the only way to deal with this type of thing.
As others have said  
Mike in NY : 5/19/2023 9:26 am : link
Get a lawyer. Just because there was this one text does not mean that the ex-wife is entitled to a permanent Order of Protection. Going to alcohol rehab is good and it might be necessary to get a referral for an anger management program. Many programs also take insurance. I represented a client who was separated from a very vindictive woman and, knowing he would be drinking with his buddies on a Friday night, texted him something she knew would get a nasty response from him so she could file DV charges. Judge and Prosecutor saw it for what it was and dismissed it against the children who were both over 18 at the time although living with the mother. Probably would have dismissed it outright but my client actually liked being able to use it as a way to ignore the wife's texts and admitted he needed help so by keeping it while he completed alcohol rehab/anger management classes it cost him less (the agency that took his insurance and was the most convenient for his schedule/location would only accept if there was a Court action pending and if everything got dismissed he would have had to have been private pay). Client was also one of the few who actually learned something from the classes. Seeing some of the people who flunked out and had to restart made him realize how far down the rabbit hole he could get.
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