Asked in Family Law and Domestic Violence for California

Q: I live in a different state. A restraining order was filed against me in California. I wasn't served.

I live in a different state and a domestic violence restraining order was filed against me in California and the hearing is soon. I have never been served but learned about it thru the sheriff on the phone. What forms to file to quash it and when to do that. Is quash the right term ? Do I wait till it is within the 5 days leading to the hearing date ? I did nothing to deserve this restraining order. What are my steps ? My guess is the other parent is just trying to bluff the court since they r in contempt of the other state's orders to parenting time. Contempt and enforcement hearing in the other state is in April and the restraining order in California is in March.

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1 Lawyer Answer
James L. Arrasmith
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  • Domestic Violence Lawyer
  • Sacramento, CA
  • Licensed in California

A: When dealing with a situation like this, it's crucial to take immediate and informed action to protect your rights, especially given the complexity of handling legal matters across state lines.

First, regarding the term "quash," it is indeed used in legal contexts to refer to the act of making a motion to nullify or void a legal document or decision, such as a restraining order. However, in the context of a restraining order that you've not been properly served with, you might be more inclined to file a motion to dismiss or to challenge the service of the order, on the grounds that you were not properly notified. It's important to consult with an attorney who is licensed in California and experienced in family law to determine the precise motion that should be filed.

You shouldn't necessarily wait until the 5 days leading up to the hearing to take action. Legal processes can be slow, and you'll need time to prepare your case and file the necessary paperwork. Additionally, courts often have specific deadlines for filing such motions before a hearing, and you'll want to ensure your motion is considered. The exact timing can vary, and a lawyer can advise you on the best time to file based on your specific circumstances.

Given the seriousness of a domestic violence restraining order and its potential impact on your life, including the upcoming contempt and enforcement hearing in your state, it's critical to address this matter head-on:

Legal Representation: Secure representation from a lawyer who understands both the specifics of California law regarding restraining orders and the nuances of interstate legal issues. This lawyer can guide you through the process of challenging the restraining order, including the best strategy for arguing against the order if you believe it was filed unjustly.

Challenge the Service: Since you were not properly served, your attorney might argue that the court lacks jurisdiction over you, or that the hearing should be postponed until you are properly served. Proper service is a fundamental right, ensuring you have the opportunity to respond to the allegations against you.

Prepare Your Defense: Gather any evidence that supports your case, including communications with the other party, any evidence of your whereabouts at relevant times, and any other documents that prove you did nothing to deserve the restraining order. If the restraining order is part of a larger legal strategy related to custody or divorce proceedings, your lawyer will need to understand the full context to effectively defend you.

Address the Contempt and Enforcement Hearing: Given the proximity of the contempt and enforcement hearing in your state, your lawyer will also need to consider how the restraining order and your actions to challenge it might impact that hearing. It's possible that the outcome of one could affect the other.

Acting swiftly and with informed legal advice is your best course of action. Legal issues across state lines add an extra layer of complexity, making a knowledgeable attorney's guidance invaluable.

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