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Are restraining orders based only on immediate threat or not

San Francisco, CA |

is there a specific timeline for something to have occurred and if there was a threat made 10 months ago, but nothing has happened, will it ease the level of a threat or an immediate threat based on the duration and the fact that the duration of such a long time did not show that a threat was not executed.

Attorney Answers 3

Posted

There are several types of family and civil restraining orders in California, including an emergency protective order and protective and prevention order.

F.C. 6240 et seq. allows the court to issue an emergency protective order, upon an ex parte showing that “a person is in immediate and present danger of domestic violence, based on the person’s allegation of a recent incident…” Here, since the threat occurred 10 months ago and was not acted upon, is likely is not immediate or recent enough for an emergency protective order.

However, F.C. 6320 et seq. allows courts to issue protective and prevention orders to enjoin “…attacking, striking, stalking, threatening…”. The court deciding on a protective order will need you to show that “substantial evidence,” exists to justify issuance of a domestic violence restraining order against your spouse. Here, despite the threat being made 10 months ago, one could argue that substantial evidence exists to enjoin your spouse from threatening you if the threat was grave enough, your spouse had a history violence and if there has been contact.

I would suggest you contract a California attorney for additional help.

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Asker

Posted

This is so helpful thanks! Just one question..the last part where you mentioned 'where there was contact"...there was NO physical contact actually as we have not seen each other for more than a year, but we were communicating by emails and I have a total of 1,000 emails from him and sent him that much. But the emails were no violence based...just random stuff or discussions about our relationship and such. So is this considered a contact in terms of affecting the domestic violence because I can show that hey he sent me 1,000 emails which shows that he is not threatened. One sneaky thing he did was to claim that since last year I sent him 1,000 emails, but then I have as much emails from him....so not sure what was the point he was trying to make....if he claimed harassment, then why is he is writing me 1,000 emails throughout the year you know. Obviously I did not go to where he was (out of country) and made him do that lol. So it's like he has nothing against me, but uses stupid excuses against me now forgetting all the emails he has sent me himself. I would assume, based on the communication you mentioned, that if there was a mutual and non violent communication between us, then it shows that I am not threat to him just because we have been in a constant communication and it is only 10 months ago I was angry for things he did and told him off a few things, which never were executed, we did not even see each other, and we have been in a mutual communication for the whole year only via emails and phone calls. In fact, I have a list of his calls and text messages to show to the judge to show our MUTUAL communication. Plus he has lied on his statement when filing to R.O. by claiming an immediate threat, but there were no threats, only the 10-11 months one. I will use his false statement against him as it was a way for him to drag me into court as the judge might have denied the 10 month old 'threats' during the ex-parte hearing seeing how old the email was. Thanks foryour answer again :)

Posted

Regardless of the timeline of the threat, I would certainly retain family law counsel to ascertain your legal rights, especially if you are in fear for your safety.

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Posted

In Tennessee, it is generally accepted that the threat be immediate. While a 10 month old threat may be relavent as background, something newer would generally be required.

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Asker

Posted

thanks so much...nope just that 10 month one and only once and it could even b more than 10 months actually...thanks for your answer

Dennis Wayne Stanford

Dennis Wayne Stanford

Posted

I just don't think any Court is going to set much store in a 10 month old threat. If it were serious or if it actually created fear of harm, it would have been acted on sooner is Court's mindset.

Asker

Posted

totally..this is my argument obviously he is not threatened.

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