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The Sword And The Restraining Order

Posted by attorney Matthew Podolnick

Britney Spears allegedly filed for a restraining order against her then current boyfriend Adnan Ghalib, supposedly a member of the paparazzi, because he was informing his agency about her whereabouts. Rather than merely end their relationship, thereby severing his ability to provide his agency with photo ops, Britney took the decidedly aggressive course of action and supposedly filed for protection under California's domestic violence laws. Was Britney's conduct warranted, an over reaction or an abuse of the system?

A person can file a complaint alleging an act of domestic violence and obtain a restraining order in a local Municipal Court or the Family Part of the Court, when the act of domestic violence is between people with a relationship, if that person inflicts one of the following: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment or stalking. Judges routinely issue temporary restraining orders upon the sworn oral testimony of the victim who is not required to be physically present when the person seeking restraints appears to be in danger of domestic violence. The oral statement can be given to the judge over the telephone. Once the temporary restraining order is issued, a hearing is scheduled in front of a judge who then may issue a final restraining order upon a specific finding of domestic violence or dismiss the temporary restraints.

Unfortunately, the domestic violence laws are increasingly used as a sword rather than a shield for which they were intended. As the number of couples filing for divorce exceeds 50%, and as dads' roles in the house as care givers for the children expand and so do their rights to custody, the filing of false domestic violence complaints, by both men and women, grows. False claims are filed in an effort to gain a strategic advantage in the divorce litigation. These false claims, however, trivialize the true suffering of real victims of domestic violence and are an abuse of the system.

Victims of domestic violence need protection and restraining orders can be an important tool. When the domestic violence laws are used inappropriately with greater frequency, however, the real victims are abused again because judges become cynical and may not grant restraints when they are truly warranted. Additionally, children get caught up in the battle between feuding parents and become victims themselves when a false claim is filed because routinely the temporary restraining order prohibits the accused of seeing the children. To compound the growing problem, in a recent Appellate Court decision it was held that even if an alleged victim loses in the Family Court, double jeopardy does not attach and a criminal complaint can be pursued.

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