Tag restraining order process

An Introduction to Process for Anyone Who’s Been Falsely Accused on a Restraining Order Petition and Doesn’t Know Anything about the Law

Moderator 35 Comments

Representations of legal process on TV and in the movies are misleading. Judges are not sage, and they don’t care about you or your rights any more than they have to. People are falsely accused on restraining order petitions who may never have seen the inside of a courtroom before. They may enter with the expectations that they will be granted a judge’s compassionate and deliberate attention, and that if they tell the truth, they will be exonerated. These expectations are wrong.

  1. Law is about rules; it is not about truth, evidence, or morality.
  2. Judges don’t make the rules, but laws license judges to act independently as they “deem appropriate.”
  3. Judges can do whatever they want, which includes ignoring truth, evidence, and morality; ignoring truth, evidence, and morality isn’t against the rules.
  4. Judges aren’t accountable for anything they do unless it violates the law, which extends them broad discretionary powers (discretion is the right to freely choose, according to any standard or arbitrarily).
  5. Judges have been trained to be judges; they have not necessarily been trained to be lawyers (and neither lawmakers nor the court recognizes this to be a contradiction). The judge you appear before may not even have a college degree.
  6. Part of judges’ training is being told how to respond to certain allegations. In other words, bias is intrinsic to the process.
  7. Judges are guided in forming restraining order rulings by the principle of economy (i.e., efficiency), not by the principle of justice.
  8. Restraining order rulings are based on a “preponderance of the evidence,” which means judges favor the side whose presentation is more forceful, not more truthful. Restraining order rulings are not based on ascertainable proof, and the exposure of lies can count for nothing. (“Proof beyond a reasonable doubt” is a criminal standard and has nothing to do with restraining order judgments, which are based on claims, not facts.)
  9. In contrast to a lurid falsehood (e.g., “I’m afraid for my life!”), the truth is often weak, feeble, or ridiculous (i.e., less influential).
  10. The truth only has value if a judge finds it more compelling than a lie.
  11. Judges decide “the truth”; the truth doesn’t decide anything.
  12. Once judges bang their gavels, the truth is of no consequence and cannot be reasserted. (Its reintroduction in court is barred by the doctrines of res judicata and collateral estoppel.) Lies cannot be attacked in a collateral action (i.e., another legal proceeding, including an appeal). After a restraining order hearing is concluded, the allegations litigated in the case cannot be retried (except under extraordinary circumstances).
  13. Lies to the court are not recognized as libels or slanders, and the falsely accused cannot sue for criminal perjury.

~SUMMARY~

The truth only counts if it works, and it can only work in a restraining order hearing, which may be afforded all of 10 minutes of the court’s time. The truth may be of value if it controverts or refutes false accusations (and the judge is paying attention or cares). Merely establishing that a false accuser is a liar, however, is no guarantee of a dismissal.

In preparing a defense, the accused should consider what will work, not what is true, decent, or honest.

Copyright © 2015 RestrainingOrderAbuse.com

*If all of this sounds like a recommendation to get a lawyer, that’s because it is. One false accusation, successfully put over on the court, is a foot in the door that a false accuser may exploit indefinitely. The record is public and permanent…and may be only the first of many.

A Word on Restraining Order Statistics and the Rate of False Restraining Orders

Moderator 5 Comments

I responded to a paper published last year by law professor Kelly Behre, who took umbrage that so-called FRGs (father’s rights groups) were promulgating the statistic that 80% of restraining orders were frivolous or false. This conjectural statistic (60 to 80%) was, I believe, postulated by Save Services based on its studying available information, which is scant. I don’t know that the estimate is unimpeachable, but I don’t believe its authors ever asserted it was conclusive.

Speaking conclusively about figures like this is impossible. Even estimates of how many restraining orders are issued every year in the United States is speculative (and informed guesses I’ve read range from 900,000 to two or three million).

The posited “80%” statistic was seized upon by critics of the restraining order process and bruited broadly on the Internet. I published it myself, and this blog, accordingly, was cited in Prof. Behre’s paper as the product of an “FRG.” It’s actually the product of a single tired and uninspired man who knows that false accusations are made.

Is the statistic wrong? Who knows. Who can say, even, what such a statistic purports to refer to? Does it mean most restraining order petitions are false? Does it mean most temporary restraining orders are dismissed as insufficiently founded? Or does it mean most restraining orders that are finalized have bogus grounds?

There are three phases to the process. A petitioner files an application, which may be approved by a judge or may not be. If it’s approved (ex parte), a temporary order is issued. This order is then supposed to be subjected to review by another judge before being affirmed and made “permanent.” (The word permanent is misleading. A “permanent” order typically has a duration of one year—though, to compound the confusion, some orders may actually be permanent and never expire. What isn’t misleading is that the public record of a restraining order is permanent.)

Three phases: application, temporary order, “permanent” order—got that?

What people invested in exposing this travesty of justice must understand is that it’s possible an unknown (and significant) number of applications for restraining orders are rejected at the outset. Their petitioners are refused. Is this number recorded someplace? Maybe, maybe not. We’re a federation of states, and every one of those states has its own budget, recordkeeping practices, and priorities.

Perhaps even its individual courthouses do.

Putting aside the fact that the number of applications that are rejected may not be recorded, there’s also the question of how many orders are preliminarily approved by the court and then dismissed on review.

I recently quoted a statistic reported in The Denver Post: “In fiscal 1998, about 18,000 temporary and 3,300 permanent domestic-violence-related restraining orders were issued in Colorado counties.” This statistic itself suggests that over 80% of restraining orders are determined to be frivolous, flimsy, or false. It says that of some 18,000 initially approved (i.e., temporary) restraining orders, only a fractional 3,300 were found meritorious on review.

It says the “80%” statistic is, in one sense at least, right on the money, if not conservative.

If comprehensive statistics for all courts were available that showed how many restraining orders were petitioned, how many of those petitions were rejected outright, and how many of those petitions were rejected on review, the proper statistic for restraining orders determined to be unfounded or indefensible by the court might prove to be in the 90th-percentile range.

And that’s ignoring that a goodly number (and maybe a majority) of the restraining order petitions that “pass muster” and are affirmed by judges may themselves be based partly or wholly on BS claims.

Even what “false” may mean in respect to restraining order allegations is ambiguous. Does “false” mean misrepresentative of the truth, i.e., misleading? Does it mean inclusive of true and falsified allegations? Or does it mean fabricated wholesale, i.e., purely and maliciously untrue?

James Thurber: “It is better to know some of the questions than all of the answers.”

Copyright © 2015 RestrainingOrderAbuse.com