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What are the chances that my ex can bring in false witnesses for a restraining order hearing and win it?

San Jose, CA |

My Ex has has 2 prior Domestic violence cases and has been arrested for drugs, false impersonation. Now he has a criminal misdemeanor case against him. Is it wise to file for a restraining order from family court even though I have a Criminal Protective Order against him? Would a case in family court be his opportunity to hurl stones at me and make me look bad? We have never been married before and have no children together. If he wins the case then will it reflect bad on my records?

Attorney Answers 3

  1. a) The criminal protective order does not cover as much ground as the DV protective order does, and it is usually a good idea to supplement the CPO with a DVRO.

    b) His "stone hurling" would probably not affect the case too badly, although you don't say what "stones" you expect him to "hurl." The core issue is whether your reasons for asking for DVROs are true, not whether you might have a less-than-stellar reputation or record.

    c) I cannot imagine a scenario whereby your losing a motion for a DVRO would be on your "record." What record are you worried about? Denial of a motion does not create any record beyond that: You requested and the court denied your request.

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

  2. I agree with the attorney above. Also I would add that the standard of proof required for a DVTRO is pretty low, and I believe lower than that required for a CPO. Most people are surprised to find that DVTROs are usually granted on nothing more than the testimony of the person asking for protection. Further, a CPO is primary and any DVTRO is only supplemental, therefore if you have a CPO that lasts for as long as you think you need it and covers what you need, it might not be worth the effort to pursue a DVTRO as well. But CPOs don't usually last very long, and DVTROs can be ordered for as long as 5 years, so a good reason to pursue a DVTRO might be to ensure you will still be protected after the CPO expires if it is relatively short in duration.

    The answer above does not constitute legal advise and is not based on any confidential information provided by the poster. Each situation is specific in nature and any answer offered is based only upon the information provided by the poster; the attorney does not warrant the answer is applicable to the poster's situation. This answer does not create an attorney-client relationship.

  3. I agree with both David and Sarah, and would further urge you to use these measures only when you need them. If you have legitimate fears and need protection, then by all means, seek that protection.

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