Is it okay to make different claims than what was in the original application for a Domestic Violence Restraining Order and what should be done about it?
Imagine that you’ve been accused of domestic violence and that you’re now facing a Domestic Violence Restraining Order (DVRO) hearing in the Family Law court. For the sake of argument, imagine that the allegations are false and that the DVRO is a pre-emptive strike in order for the opposing party to gain immediate child custody orders. The date of the hearing is set for a few days from now and, to the best of your knowledge, your accuser is without legal counsel or evidence.
Then, on the day before the hearing, you’re informed that your accuser has hired an attorney. Immediately after, you’re personally served with a “Supplemental Declaration” with fifteen attachments totaling some 250 pages, and a thumb drive containing over nine hours of alleged recordings of private conversations that were made without your knowledge and/or consent[i]. This is the pile of evidence that your accuser has already submitted to the court. You quickly realize this new evidence supports different claims than the ones originally made in the original forms that you were served with. You’re told that you need to be able to respond to every piece of evidence at tomorrow’s hearing and that you’ll need to have evidence to refute your accuser’s claims, old and new.
You don’t sleep, because you’re up-all-night reading and listening. You get through half of it by the time the hearing rolls around. The judge does nothing outside of asking if you’re ready to proceed. You have no representation and very little evidence to refute your accuser’s claims, but you don’t really see any other option; so, you proceed.
As expected, you’re promptly trounced by the experienced lawyer. The court hits you with a five-year restraining order that, along with permanently marking you as a domestic violence abuser, also prohibits you from traveling to some of your favorite haunts, like the movie theater you and your accuser used to frequent.
Does this seem fair to you? Probably not. You were ill-prepared, unrepresented, and given no real chance to defend yourself. The judge didn’t intervene, nor do much outside of granting the restraining order. It was a trial by ambush. In fact, it really seems like there should be laws in place preventing situations like this, right?
The Purpose of This Article
Well, that’s just it: There are laws in place that are intended to prevent this.
And that’s what this article is about. The events described above are not uncommon in California Family Law. They’re the result of a lack of familiarity with or an unwillingness to enforce laws and standards present in California Family Law. The reasons for failing to comply with these laws and standards are myriad, and it isn’t our job to speculate why people might be doing so. Instead, this article is written to educate lay-people, legal professionals, and other interested parties about the existence and importance of these statutes and case law.
Now, before we move on, we need to make note of something: In this article, we speak strictly of Family Law within the State of California. Other states and other areas of law may differ.
Moving on, there were five major errors made, here:
- Your accuser’s attorney did not timely submit a substitution of attorney form.
- You had a statutory right to a continuance (to review evidence and/or hire a lawyer).
- Your accuser changed the claims of domestic violence without properly resubmitting the mandatory forms.
- Your accuser did not timely or properly submit the pile of evidence supporting the new claims.
- The judge did not inform you of your rights to object to and/or strike the new claims and evidence
- The judge did not take an active role in enforcing the above rules.
We’re going to explain each of these in turn.
The Substitution of Attorney Form
Any time an attorney has been hired to represent someone in a case, they are required to file and serve a “Substitution of Attorney” form. The purpose of this form is, primarily, to inform everyone interested in the case (especially the opposing party and the judge) that one party has brought in experienced legal counsel. The notice is intended to give all involved parties an opportunity to make sure there are no conflicts with the representation.
In your case, however, your accuser’s attorney has failed to do so, refrained from doing so, or has submitted the form improperly. Regardless, the result is the same; you find yourself up against someone with years of education and experience in Family Law, and you’re completely outmatched. What’s more, you’re caught flat-footed and the surprise alone throws you off your game.
Most judges will allow an attorney to submit their Substitution of Attorney form on the day of the hearing, presuming that some people may be caught in situations where they genuinely don’t find legal counsel until that time. But some lawyers also use that allowance as a loop-hole; They refrain from submitting the Substitution of Attorney form until the day of the hearing, for the specific purpose of keeping the opposing party from thinking they need to hire an attorney, thus catching them off-guard.
But, with all that said, this is mostly a technicality. In practice, it’s very rare that a judge will bar an attorney from representing their client as a result of failing to timely file and serve their Substitution of Attorney form.
Your Accuser Changed Their Claims, Submitted Their Forms Improperly, and Untimely
These issues should be handled all at once, as they pertain to the same section of California Family Law code.
When filing for a DVRO, you are required to submit certain mandatory forms and submit them properly. These forms are intended to be simple for lay people to understand and are intended to outline specific factual information regarding the allegations of domestic violence. These mandatory forms request very specific information relating to the allegations of abuse.
After all, time is of the essence when dealing with domestic violence. If the allegations are true, the court needs to come to a decision as fast as possible to protect the victim from further harm. And, in case the allegations aren’t true, they need to be disproved before the allegation, and the provisions of any temporary DVRO have a chance to do lasting damage. The specificity and timeliness of the required forms gives the accused specific allegation to refute, and sufficient notice to provide rebuttal evidence.
In your case, this has failed on three counts. First, the stack of evidence you were handed falls far outside what was stated in the mandatory forms, plain and simple. At best, they were an unauthorized substitution for the mandatory forms that your accuser should have submitted. Second, absent an ex parte order shortening the time for service, one-days’ notice is not enough to allow a reasonable person to respond to any kind of allegations, let alone 250 pages of documents and video evidence.
Finally, there’s the fact that the claims made in the original mandatory forms were changed and/or augmented. If they submitted those forms properly, they would be unable to change their claims without submitting a revised DVRO on the mandatory forms. The fact that they were allowed to do so goes to the primary issues with this case. A clear case of bait-and-switch.
Most of this could have been avoided if the judge presiding over your case had chosen to intervene. The judge could have pointed out the incorrectly-submitted forms and should have stricken that mountain of untimely submitted evidence (at least to the extent that it supports claims not found in the original mandatory forms). In addition, California Family Code Section 245 specifically states that the accused shall be allowed one continuance to give him or herself time to respond to a petition, which means that the judge could have allowed you to postpone the hearing to give yourself time to find legal counsel or, at least, respond to the evidence and charges that have been levied against you.
But more than that, the judge should have informed you of your rights. According to California Family Law, because of the above violations, you had the right to object and have some or even all of that evidence stricken.
In short, the judge didn’t inform you of your rights.
But, according to California Law, judges are expected to do so. California’s appellate courts have explicitly stated that in matters of domestic violence involving pro per litigants, judges are required to take a more active role in litigation so that they can protect the constitutional and procedural rights of all parties involved. This was determined in the 2006 case of Ross V. Figueroa:
“We know the litigants, both plaintiffs and defendants, are unrepresented by counsel in the vast majority of cases – as was true here. We also know this fact influences how these hearings should be conducted – with the judge necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order. In such a hearing, the judge cannot rely on the pro per litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights”
– Ross v Figueroa (2006) 139 Cal.App.4th 856, 861.
In other words, the Court decided that regular people (pro per litigants) cannot be expected to know procedural steps or be equipped to protect their rights to due process. As such, the judge is expected to step in and keep them properly informed as to their rights and proper procedures.
The Importance of Keeping Up with and Abiding by Family Law
How can you keep from falling victim to these kinds of errors or, if you’re a legal professional, making these errors, yourself?”
Well, you’ve already made the first step! By reading this article, you’ve educated yourself about this issue and lowered the chances that you’ll miss these problems or become victimized by them if they occur.
Outside of that, one of the best things you can do is hire aggressive legal counsel that keeps up with changes to California Family Law. That way, you know your attorney won’t miss a beat and will work hard to fight for your rights.
Make sure to keep an eye on our blog, as we hope to answer more questions that pertain to legal professionals, people involved in family law battles, and other curious parties. And, if you have a question about this topic that we did not answer, feel free to ask us here or on Facebook.
Or, if you have questions about anything else family law related, feel free to email us at [email]! We’ll try to respond and, if it’s a good one, we might turn it into one of our articles and place a thank you to you for the question!
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About the Author:
Connor D. Johnson
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Copyright applied for 2018.
[i] We will not be addressing the propriety or admissibility of surreptitious recordings of private conversations as part of this article due to the extensive nature of this topic. “Recording Private Conversations” will be addressed in a future article.