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Thread: Contesting A Restraining Order

  1. #1
    Regular Member Esanders2008's Avatar
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    Contesting A Restraining Order

    Hi all, sorry I haven't been on too much. I've been busy with school.

    12 Jul, My wife and I were picking my younger brother up form his house. A verbal altercation between my mom and my wife ensued, and my mom reached into the car and started choking my wife. My wife defended herself by pushing my mom away, then driving off. A complaint was made before a magistrate who issues a warrant for my mom's arrest, as well as a protect order for my wife (my wife is receiving the protection).

    My mom now wants to get a restraining order on my and my wife so that we may not have contact with my mom or my brother. No threats of violence have been made by us toward either of them, and my brother is quite upset.

    I am also very concerned because my wife and I will have to surrender our CHPs if we are served a protection order. What can we do to combat this situation?

    Thanks,
    ...To make my bullets go faster!

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    Get a lawyer who knows domestic relations law and is gun friendly. The consequences of a restraining order are too great to rely on the free advice you get on the Internet, even an excellent site like OCDO.

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    Quote Originally Posted by markand View Post
    get a lawyer who knows domestic relations law and is gun friendly. The consequences of a restraining order are too great to rely on the free advice you get on the internet, even an excellent site like ocdo.
    +1

    ccj
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    From what I can make .. a judge may issue out all the restraining orders requested.

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    Is the RS sufficient enough on its own to have a CWP revoked? If a CWP is revoke, the citizens only recourse would simply be to open carry, correct?

    Very interesting.

    TIA

    CCJ
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  6. #6
    Regular Member Esanders2008's Avatar
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    Quote Originally Posted by countryclubjoe View Post
    Is the RS sufficient enough on its own to have a CWP revoked? If a CWP is revoke, the citizens only recourse would simply be to open carry, correct?

    Very interesting.

    TIA

    CCJ
    I should have been more specific. The respondent may not own, possess, or transport firearms or ammunition. So yeah...
    ...To make my bullets go faster!

  7. #7
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by countryclubjoe View Post
    Is the RS sufficient enough on its own to have a CWP revoked? If a CWP is revoke, the citizens only recourse would simply be to open carry, correct?

    Very interesting.

    TIA

    CCJ
    Under Virginia law? Yes.

    Esanders

    TROs go before a judge for a full-on hearing of the merits. Get yourself an attorney.

    Forget aout one who is 2A-friendly, or even knows what 2A means. Your wife needs an attorney who specializes in domestic relations. The meanest junkyard dog of a divorce lawyer you two can find.

    You know, we know, and the judge will probably know that the restraining order is retaliatory, but the judge will not care because issuing it will C his A in case anything goes wrong. ("See. I did everything I could to prevent this senseless murder.")

    Not that your wife is likely to kill your mother, but it's happened between other folks' wives and those other folks' mothers.

    If a hearing is scheduled before you retain an attorney, suck up the restrictions and ask for a continuance. Your wife would have better luck defending herself against criminal charges than defending herself on domestic relations issues.

    stay safe.
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    Regular Member Esanders2008's Avatar
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    Quote Originally Posted by skidmark View Post
    Under Virginia law? Yes.

    Esanders

    TROs go before a judge for a full-on hearing of the merits. Get yourself an attorney.

    Forget aout one who is 2A-friendly, or even knows what 2A means. Your wife needs an attorney who specializes in domestic relations. The meanest junkyard dog of a divorce lawyer you two can find.

    You know, we know, and the judge will probably know that the restraining order is retaliatory, but the judge will not care because issuing it will C his A in case anything goes wrong. ("See. I did everything I could to prevent this senseless murder.")

    Not that your wife is likely to kill your mother, but it's happened between other folks' wives and those other folks' mothers.

    If a hearing is scheduled before you retain an attorney, suck up the restrictions and ask for a continuance. Your wife would have better luck defending herself against criminal charges than defending herself on domestic relations issues.

    stay safe.
    I was afraid this was going to cost money... Does anyone know what an attorney might charge for this kind of service?
    ...To make my bullets go faster!

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    Quote Originally Posted by Esanders2008 View Post
    I was afraid this was going to cost money... Does anyone know what an attorney might charge for this kind of service?
    One could easily spend thousands of dollars. Doesn't take long at 150 to 200 dollars and hour.

    Besides getting an attorney it is time to cut off all contact with your mother your relationship with your brother might end up being an casualty until he turns 18.

    Family disputes are nasty and can be very counter productive.

    To protect your self and wife stay away from your mother.

    Unfortunately there are times one has to write some family members off.
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    Regular Member Esanders2008's Avatar
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    I have no issue writing her off. My primary concern is our 2a rights. We don't exactly have thousands of dollars. We are expecting our first child, and have been sticking money away for that.
    ...To make my bullets go faster!

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    Check your phone book yellow pages for a listing of "Attorney referral service". You can usually find what you need, and the first consultation is normally free.

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    Quote Originally Posted by davidmcbeth View Post
    From what I can make .. a judge may issue out all the restraining orders requested.
    Those would be the "temporary" variety which can be issued WITHOUT YOUR HAVING ANY OPPORTUNITY TO PRESENT YOUR CASE/DEFENSE until after your rights have been obstructed until the following hearing where you get to present your evidence IF YOU ARE LUCKY!
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    Regular Member OC for ME's Avatar
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    The criminal complaint and subsequent arrest (she was arrested, like cuffed and stuffed, right?) should...should, indicate a retaliatory response and her petition should...should be rejected. Good luck.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    I have no issue writing her off. My primary concern is our 2a rights. We don't exactly have thousands of dollars. We are expecting our first child, and have been sticking money away for that.
    Let's start at the beginning. Has your mom filed for a restraining order? (Your wife would know because the cops would come around and serve her with it.) If not, everything is speculation. Come back when you know for sure.

    IF your mom applies for a restraining order -

    You have stated your priorities, but seem to want to waffle and waver.

    Not busting your chops about anything - just trying to help you focus. Doctors, hospitals and Babys-R-Us all do credit arrangements. Atorneys usually, for cases like this, want cash on the barrelhead. Se if you can get a fixed-price deal as opposed to an hourly rate.

    It ought to be a slam-dunk for your attorney to swat down any restraining order she tries for. But what ought to be and what is sometimes are very different.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    Regular Member Esanders2008's Avatar
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    Shame on you skid... Babies R Us is an anti establishment as far as the facts go, she has not been served an order yet, but my younger brother had seen documentation stating that an order has been issued. So we shall see. I received word that the orders will be dropped if my wife drops the charges.
    ...To make my bullets go faster!

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    Wowwie!!!

    Quote Originally Posted by Esanders2008 View Post
    Shame on you skid... Babies R Us is an anti establishment as far as the facts go, she has not been served an order yet, but my younger brother had seen documentation stating that an order has been issued. So we shall see. I received word that the orders will be dropped if my wife drops the charges.
    Who,, or how did you manage to learn of this?
    If that can be documented, it proves that she is just retaliating.
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    Regular Member Esanders2008's Avatar
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    My father has been in contact with me. I trust him as a reliable source.
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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    Shame on you skid... Babies R Us is an anti establishment as far as the facts go, she has not been served an order yet, but my younger brother had seen documentation stating that an order has been issued. So we shall see. I received word that the orders will be dropped if my wife drops the charges.
    *hangs head in shame*

    If the order has been issued it should (not legally - just "ought to") be served within 24 hours. Make sure you get the cop serving it to note the time & date served and initial that on her copy. (Yes, he's supposed to do that for the return of service copy but sometimes they wait till they are turning in the paperwork to fill out the form.)

    Offering to "drop" the restraining order if your wife drops the charges is pure bluff. Better that she and your wife go in front of a judge and the person(s) you "received word" from tells that to the judge. Most judges do not take kindly to having to do all the paperwork for a temporary restraining order just to hear that the person who asked for it has changed their mind.

    (talk with the person who told you your mom said she would withdraw the RO in return for the charges being dropped. See if they will voluntarily testify or not - and then get a supeona for them anyhow.)

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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    Regular Member Esanders2008's Avatar
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    Thanks for the advice. I'm going to see how this pans out. If there is a 72 hour protective order (ERO?) does this automatically become a longer one or does there have to be a hearing?
    ...To make my bullets go faster!

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    What exactly was your role in this, Esanders? Were you sitting placidly in the passenger seat while your wife was being choked and forced to defend herself? Or is there more to this story regarding your involvement and why a TRO may well be issued in absentia?

  21. #21
    Regular Member Esanders2008's Avatar
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    I was indeed sitting in the passenger seat. My involvement was limited to pulling my wife away, and trying to roll up the window.
    ...To make my bullets go faster!

  22. #22
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    Thanks for the advice. I'm going to see how this pans out. If there is a 72 hour protective order (ERO?) does this automatically become a longer one or does there have to be a hearing?
    See http://leg1.state.va.us/cgi-bin/legp...cod+19.2-152.8

    B. When a law-enforcement officer or an alleged victim asserts under oath to a judge or magistrate that such person is being or has been subjected to an act of violence, force, or threat and on that assertion or other evidence the judge or magistrate finds that (i) there is probable danger of a further such act being committed by the respondent against the alleged victim or (ii) a petition or warrant for the arrest of the respondent has been issued for any criminal offense resulting from the commission of an act of violence, force, or threat, the judge or magistrate shall issue an ex parte emergency protective order imposing one or more of the following conditions on the respondent: ....

    C. An emergency protective order issued pursuant to this section shall expire at 11:59 p.m. on the third day following issuance. If the expiration occurs on a day that the court is not in session, the emergency protective order shall be extended until 11:59 p.m. on the next day that the court which issued the order is in session. The respondent may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket of the court.
    In plain words, your mother would have to file a petition for a "permanent" protective order. Your wife can file a motion at any time before the expiration of the 72 hours to dissolve or modify the emergency ex parte order while it still exists.

    F. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.

    http://leg1.state.va.us/cgi-bin/legp...0+cod+16.1-228

    "Family or household member" means (i) the person's spouse, whether or not he or she resides in the same home with the person, (ii) the person's former spouse, whether or not he or she resides in the same home with the person, (iii) the person's parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person, (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person.
    Looks like your mom cannot proceed against your wife as a 'family member". It's just going to be Person A is afraid that Person B .

    Stop asking questions here and start asking your questions to an attorney.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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  23. #23
    Regular Member Esanders2008's Avatar
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    Is that 72 hours from service or from when the magistrate or judge says "here's the order"
    ...To make my bullets go faster!

  24. #24
    Regular Member Esanders2008's Avatar
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    And I talked to a couple of attorneys. They want $1000 for a "simple" case and more if it is more complex
    ...To make my bullets go faster!

  25. #25
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    I agree with Bob1. Why didn't you report this assault on your wife? I'm not married but I've been with the same woman 10 years (so basically) and if my mother tried to choke her I'd kick her ass and have her locked up. This violent behavior isn't something that just happens first time someone gets mad. Choking someone is essentially an attempt to kill. I'm going to take an educate guess and say your mom abused you as well. This is what you get for not dealing properly with it. Don't be surprised if your inability to protect your wife ends up in divorce. Don't take this the wrong way, but aren't you carrying to protect her?

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