Protective order and background check

Under the Fifth Amendment to the U. An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution. However, adequate notice of judicial proceedings to concerned parties may at times work irreparable harm to one or more of those parties. In such a case, the threatened party or parties may receive an ex parte court hearing to request temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing.

Ex parte judicial proceedings are usually reserved for urgent matters where requiring notice would subject one party to irreparable harm. For example, a person suffering abuse at the hands of a spouse or significant other may seek ex parte a temporary restraining order from a court, directing the alleged abuser to stay away from him or her. A court order from an ex parte hearing is swiftly followed by a full hearing between the interested parties to the dispute. In the case of a restraining order, this full hearing is known as the day hearing.

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State and federal legislatures maintain laws allowing ex parte proceedings because such hearings balance the right to notice against the right to use the legal system to avert imminent and irreparable harm. Far from violating the Constitution, the ex parte proceeding is a lasting illustration of the elasticity of due process.

You will not initially know that an ex parte restraining order has issued against you. You will only be officially notified of a restraining order when you are served. The court will not hold a day hearing until it receives a return of service indicating that you have been noticed of the full hearing, and the ex parte order is valid only until this hearing date. You cannot violate a restraining order if you have not been properly served because you arguably have no legal notice of it.

The day hearing is a full two-party evidentiary hearing that is, if possible, usually held 10 days after the ex parte hearing.

Restraining Orders are Serious Matters

The 10 days is not always a hard and fast rule since weekends and holidays oftentimes come into play. If you have not been served, the court will postpone the hearing until service is made. The parties can also mutually stipulate to continue the hearing for strategic purposes, or a defendant can otherwise request that the court continue the hearing in order to buy more time to obtain necessary evidence or procure essential witnesses.

Assuming that service is properly made, you must appear at the day hearing. Failure to appear at this hearing can be catastrophic as the restraining order can extend by default if the plaintiff simply appears, and without your voice being heard in opposition.

At this hearing, you will have the opportunity to defend yourself and to prevent the restraining order from extending, meaning you will seek to have it vacated. You can cross-examine the plaintiff and other adverse witnesses, and present both testimonial and documentary evidence. You can elicit the testimony of favorable witnesses, and you can summons police officers or even hostile witnesses who might be able to provide exculpatory evidence on your behalf.

However, you must exercise extreme caution not to incriminate yourself by testifying at this hearing and, generally speaking, should probably refrain from testifying if there is a collateral criminal proceeding pending against you. It is therefore critical that you retain competent legal counsel since this hearing will probably be your one and only bite at the apple for perhaps another year.

It is also crucial that your rights to later expunge the record of the ex parte order are properly preserved for the record. A restraining order will last for as long as the judge orders it. Generally speaking, once a judge extends the restraining order beyond the day hearing, it is customarily for a period of one year. However, a judge can also term a restraining order for a shorter period of time before the next scheduled full evidentiary hearing to determine whether or not it should again be extended or otherwise be vacated.

Needless to say, you should do everything in your power to prevent this tragic outcome.

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• When Would a Restraining Order Show up on a Background Check?.

Contrary to what many uninformed court employees, attorneys or even judges might otherwise tell you, a restraining order does not appear on your criminal record. The restraining order itself is civil in nature and only becomes criminal if it is alleged that you have violated it and have been charged with that crime.

In that instance, the actual crime of violating the restraining order will appear on your criminal record. However, be careful not to confuse the initial civil record created by the issuance of the restraining order with the resulting criminal violation, as they are two entirely separate and distinct matters. Your CORI shows only crimes that you were charged with, even if you were not convicted.

It does not display records of civil proceedings or civil orders. Neither does it show adjudications of civil motor vehicle infractions, which is strictly the function of the Registry of Motor Vehicles, an agency that maintains its own unrelated records database. The existence of a civil restraining order record is not disclosed as part of a routine criminal background check and is obtained by other means by agencies, cities, towns, employers, schools, public housing authorities, private landlords, licensing authorities, etc.

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How does it affect me and can I fight it and win? Your attorney can show the court evidence of gainful employment, participation in counseling, statements from persons who can attest to the change in your character, and the absence of violations of the order. A restraining order can change your life both in the short and long term. If a restraining order has been filed against you, you should contact an experienced restraining order attorney immediately.

Our lawyers have more than 35 years of experienced successfully helping our clients in restraining order matters. Let us help you now. We will get through this together. Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies.

Wallin also helps clients with family law matters such as divorce and child custody. View all posts by Paul Wallin. I would like to sincerely thank you for helping me with obtaining my Certificate of Rehabilitation. I now realize the importance of obtaining a law firm that has years of experience in criminal law. The way the package was organized and presented to the presiding judge was very impressive to me. My brother was convicted of second degree murder in Los Angeles County. He was sentenced to 16 years to life in state prison.

Does The Temporary Protection From Abuse Order Prevent Me From Owning Firearms?

I hired Stephen Klarich from the law firm of Wallin and Klarich to work on his appeal. But our shock turned into horror when he was charged with felony arson. If you or a loved one have been accused of a crime, this is the time to contact us.

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Paul Wallin. Criminal Protective Order: Criminal protective orders may be issued to protect a person who law enforcement believes is at risk of injury or death as the result of a criminal investigation. How a Restraining Order Changes Your Daily Life If you have a restraining order entered against you, you will have to make some immediate changes to your daily life.

Author: Paul Wallin.