San Diego family law attorneys to assist military members served with a protective restraining order
If you are in the military, a Temporary Restraining Order (sometimes called a protective restraining order) for domestic violence issued against you can have a very negative and lasting impact on your career. In California, this type of restraining order is called a “Domestic Violence Restraining Order” and if granted by a judge, can prevent you from performing your military work duties. It can prohibit you from owning, possessing or purchasing firearms, guns and ammunition. Therefore, it is crucial that it is aggressively challenged because there is so much at stake.
Unfortunately, it is not uncommon that temporary restraining orders are falsely obtained and misused. For this reason, they must be challenged quickly and zealously. The domestic law attorneys at Minella Law Group are dedicated to preserving peace and stability to military members. We will provide support and expert representation in defending your rights in civilian courts.
Temporary Restraining Order on a Member of the Military
Domestic Violence Restraining Orders are treated differently in military and civilian courts. If your family law attorney does not have the legal expertise and knowledge of the devastating effects that a Domestic Violence Restraining Order can have upon a military member, it can cause him or her to lose their commission or worse, be discharged from the armed forces.
Summary of civilian temporary restraining order process. There is a multitude of information about restraining orders that you should be familiar with to protect yourself. One wrong assumption, such as ignoring and not complying with the details of a Temporary Restraining Order, can ruin your military career and reputation. The process for a domestic violence restraining order includes:
- The petition. A Petition is first filed by one claiming abuse to obtain a temporary restraining order (“TRO”) under the Domestic Violence Prevention Act.
- TRO notice. The temporary restraining order is generally issued without prior notice to the person to be restrained, and if issued, is based upon sworn testimony of the person claiming abuse and the need for protection. If granted a TRO can issue the same day that it is filed and can be sent to the military member’s command within 24-48 hours. You may be charged with a crime if it is violated.
- TRO implications. There can be many implications of a TRO, but some of the most common require the restrained person to move out of the home, stay a certain distance from the protected person and household members or to stop contacting the protected person.
- Appearance requirement. Once you are provided notice of a TRO, you must appear at the scheduled hearing or a default will be entered. The hearing is set shortly after notice of the TRO. If you are on active duty and your military service interferes with your ability to appear and defend your case, you many request a 90-day postponement under the Service Members Civil Relief Act (“SCRA”). If you are served with protection order papers and your military service does not interfere with your appearing in the case, you must go to court. If you do not go to court, a default judgment may issue against you. There are further provisions of the SCRA regarding default judgments that may be applicable.
- Agreement vs. Hearing. When you go to court, you can either reach an agreement or have a hearing. If you do come to an agreement with the one seeking protection, be sure to understand the impact of the agreement. It will be enforceable in the same manner as any other agreement. Your family law attorney will assist you with drafting and negotiating the crucial details of this very important agreement.
- The hearing. At the hearing, you will not be appointed a JAG attorney. You will need to hire your own civilian attorney or defend yourself, which is never advisable. The hearing is where you are given the opportunity to defend yourself and tell your side of the story. The court will consider testimony given by each side and if found that no abuse exists, the case will be dismissed. If sufficient legal grounds do exist, the TRO can become permanent for up to five years.
- Permanent Restraining Order and its terms. If a judge issues a permanent restraining order, he or she will decide the terms of the order. In addition to it ordering the restrained to stay away from the accuser, it may address your children you have together, support, and possessions. It may also include that you may not have possession of a firearm or ammunition. A judge may also issue an order stating that the person restrained must turn in firearms under his or her control within 24 hours of being served.
Will military service be affected with a Restraining Order?
Having a civil restraining order against you will not result in military discharge. However, if you are convicted of a domestic violence crime and prohibited from carrying firearms and ammunition, you will be unable to fulfill your duties in combat or training exercises. This will commonly lead to demotion or discharge.
Since there are so many complexities and issues involving restraining orders and domestic violence for military members, it is critical to seek out a family law attorney to help you protect you, your family and your livelihood.