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Timothy Miranda
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Timothy Miranda’s Answers

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  • Can I still be convicted in criminal court if a family law restraining order was denied?

    A family law restraining order against me was denied. Can I still face criminal prosecution arising from the same case and set of facts?

    Timothy’s Answer

    Yes, because there is a different purpose behind an injunction and a conviction for a past, criminal act. However, since the burden of proof in a criminal case is much higher than that in a DVRO case, the fact that a restraining order was not issued will be something that the prosecution will have to consider, when deciding whether to present charges against you, or not.

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  • Does having nude pictured and sex videos (put on a porn site) make a mother unfit.

    The father is the noncustodial parent and mother is primary. She was part of a private group that posted nude pictured and had made sex tapes with a previous partner and he posted the videos to a porn site. They have been removed. Father may try s...

    Timothy’s Answer

    It creates an argument, but if the children were not purposefully exposed or otherwise involved, the fact alone that a parent made a consensual, otherwise legal tape and pictures will not move the custodial needle.

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  • My ex boyfriend who I have a restraining order against recently sent me an email. What should I do?

    I have a permanent restraining order against my ex boyfriend who was abusive in the past. I recently received an email that he forwarded from my veterinarian about an upcoming appointment. It seems innocent but I do not wish to receive any communi...

    Timothy’s Answer

    Technically it is a violation of the DV restraining order, if the restraining order has a no-contact provision. You can report it to the police, and they should make contact with him. They may or may not arrest him. Likewise, you could file an OSC re. contempt in family court for the violation, but that would be laborious and costly.

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  • Do I need a civil harassment restraining order or a domestic violence restraining order?

    I am divorced and have a court order that my ex is not to come within a hundred yards of my home. This came into effect due to my ex's coming to my home and harassing me. He was fighting the RO so we agreed to a stay away order. However he ...

    Timothy’s Answer

    You would need to request a Domestic Violence Restraining Order, since there is a preexisting marital relationship. That is good, as the burden of proof to receive the restraining order is much lower. The Family Code at 6320 and 6203 list what type of conduct may be enjoined by a DVRO. Typically one is protected in making true reports to public agencies. However, the court may consider the totality of the conduct that is harassing, including these reports, their validity, and motive.

    Bottom line is that it is ultimately up to the discretion of the judicial officer. However, you appear to have the elements of harassment and threats, and a breach of the stay-away.

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  • If someone is representing themselves in a restraining order case, can they contact the other party to negotiate a settlement?

    Well, that's pretty much my question. If someone is representing themselves in a restraining order case, can they contact the other party to negotiate a settlement?

    Timothy’s Answer

    It depends on if it is the petitioner that wishes to contact the respondent, or vice versa. The respondent cannot contact the petitioner, but can contact their attorney, if applicable. Contacting family or friends to communicate a "settlement" can be big trouble too. If the petitioner wants to contact the respondent, there is likely no need for a restraining order.

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  • If i filed a restraining order and it was granted, if i decide not to do it or go to hearing what happens?

    My husband had hit me while our 1 year old son was present. I got a temp restraining order granted. I don't want to go through with it. If i don't show up and he doesn't show up, but he responded. What will happen to both of us?

    Timothy’s Answer

    The Court will vacate it, because you must be present and ready to go forward at the hearing.

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  • DOES A SUMMONS also get served with the notice of joinder?

    When I filed for joinder to a divorce case involving property i have an interest in the clerk kept the summons and said pending the decision to grant the joinder they would stamp the summons then it would be served. Was I suppose to serve the noti...

    Timothy’s Answer

    • Selected as best answer

    No, you serve the summons, FL-375, only if the joinder is granted. You need to serve the notice of joinder, FL-371 and response, FL-373.

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  • Can i get an epo against someone for physically threatening me in front of my 10 yr old daughter? Protection for both of us?

    Its my daughters dad sister she told him she didnt care if morgan (10) was there or not, she would beat me profusely about the head. Im not scared of her but i dont want to put my daughter thru anymore trauma, caused by his family

    Timothy’s Answer

    An EPO would be facilitated by the responding law enforcement agency contacting the court, and the EPO being granted (or not), based on the facts and emergency presented. That would expire in five days from issuance, during which time you would need to request a DVTRO from the family court. So, if the police have not been called and this did not just occur, you should probably just go and request a DVTRO, which is done ex parte, or without the other side having notice. A hearing will follow in 21-25 days, to determine if the DVTRO becomes permanent (up to five years). Your child may be included as a protected person.

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  • Restraining order dropped by ex-girlfriend, can she refile using same allegations?

    My ex-girlfriend dismissed her restraining order against me and I'm wondering if she can re-file with the same allegations? There is one incident that occurred that is not in her original pleading, but took place almost five months before her ...

    Timothy’s Answer

    Yes, if the first dismissal was without prejudice, which they invariably are, the same facts can be argued. With a new allegation, the same facts can be argued for context, or course of conduct necessitating the injunction. You can file a lawsuit for the money issue, but I might consider waiting until the TRO is first resolved; it will give her less to muddy the water about.

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  • How to postpone restraining order meeting

    I need more time to prepare for a hearing for restraining order that I am placing on my neighbor.

    Timothy’s Answer

    Theoretically you are required to be ready to go when the matter first comes up for hearing. However, the court has discretion to grant you a continuance upon a showing of good cause, or if the other side stipulates to a continuance. You should contact the department clerk and inquire if the bench officer wants these types of requests in advance of the hearing date, by ex parte, or if they will only hear them on the date of the restraining order hearing.

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