Mutual Restraining Orders or Not

Mutual Restraining Orders

Mutual Restraining Orders or Not

Herriott v. Herriott involved the issuance of two restraining orders and whether the statues required the court to make detailed findings when it issued mutual restraining orders.

The parties were divorced in 2007, yet continued to live in the same apartment building. Each party took every opportunity to harass the other party. The ex-wife filed a request for a restraining order against the husband under the family law code, the husband filed a request for an elder abuse restraining order against the wife.

The trial court issued both restraining orders. The ex-husband appealed stating that the court was required to make detailed findings of fact required by California Family Code Section 6305. He further argued that without stating the detailed facts, the court acted outside its jurisdiction and the order is voidable.

The appellate court held that under the family law code, this would be considered two different orders because they were tried on different days. In addition, the ex-husband filed the restraining order under the elder abuse statutes and the ex-wife filed them under the family law statutes making each restraining order authorized by different statutes. Therefore, they were not mutual restraining orders. Both restraining orders were upheld as valid.

If you need legal advice and are looking for a family law lawyer in Orange County to address a temporary restraining order or any divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills, off the Lake Forest exit to both the 405 and 5 freeway.

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution.

California Family Code Section 6305(a)(2) states that a mutual restraining order shall not be issued unless, “the court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense.”

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.

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