If you are a party to a family law case involving a request for a restraining order in the County of Orange, you need to be aware of the peculiar orders that are made against people accused of committing domestic violence.  Family law litigants who are accused of committing domestic violence within the County of Orange are ordered by the court to meet with a government investigator and answer questions regarding the accusations made by the opposing party.  The interview takes place prior to the hearing for the issuance of a permanent restraining order.

These peculiar orders are served on the accused party after the temporary restraining order is issued (sometimes the accused party is not given notice of the hearing).  The accused party is ordered to report to the investigator's office at a specified time and date, and is not invited to bring his or her attorney to the interview.  Prior to attending the appointment with the investigator, the accused party is ordered to complete a packet of documents, which includes a detailed questionnaire concerning the other party's allegations.  When the accused party arrives at the investigator's office, the investigator engages him or her in a question and answer session.  At the conclusion of the interview, the court investigator prepares a report, which is forwarded to the judge for review prior to the hearing.  If a party refuses to speak with the investigator by invoking the Fifth Amendment right against self-incrimination, his or her chances of defending against the allegations are most likely doomed.  This is simply because many judges in Orange County use the party's refusal to speak to the investigator as an admission and place limits on how he or she can proceed with the evidentiary hearing (the Fifth Amendment right against self incrimination does not apply to Family Law Domestic Violence cases).

In my opinion, there are several problems with this procedure.  From an attorney's point of view, we always have to consider the possibility that any and all statements made by a client to the court's investigator will find its way to the local police and prosecutor.  When a party speaks to the court's investigator, he or she is not granted immunity, and therefore anything he or she says can and will be used against him or her in a criminal court of law.  Due to the fact that the process of obtaining a Permanent Restraining order in Family Court is an expedited procedure, an attorney representing a person accused of committing domestic violence in family court usually does not know the extent of the evidence, and has not had ample opportunity to adequately investigate the case prior to advising the client whether or not to speak to the investigator.  On one hand, the attorney is reluctant to place a client in a situation where the client might make incriminating statements and as a result could face criminal charges.  Anyone who has handled these types of cases is familiar with the fact that many of them are a classic "he said, she said" type of a case.  Frequently, the only thing that the criminal prosecutor has to corroborate an accusation is a statement made by the accused.  Consequently, the attorney who advises his client to speak to a court investigator is taking a great risk which can result in severe consequences.  Thus, in the abundance of caution, the attorney is usually going to advise his or her client to not answer any questions.   

On the other hand, the attorney is reluctant to give advice to the client that can be severely detrimental to the his or her chances of defeating a Domestic Violence Restraining Order and having a fair hearing on important Family Law issues such as child custody and spousal support.  Unfortunately, the Orange County court system ignores the fact that there can be harsh consequences associated with the issuance of a Domestic Violence Restraining Order in Family Court.  A person bound by a restraining order is normally going to have difficulty in obtaining certain types of jobs, will not be allowed to possess a firearm, and will be stigmatized by many people who will consider him or her a perpetrator of domestic violence, regardless of the fact that the accused may not have committed such a crime.       

Furthermore, the outcome of a request for a Domestic Violence Restraining Order can be highly influenced by the investigation or the pre-existing biases of the investigator assigned to the case.  What happens when the investigator does not have the time, resources, or the ability to conduct a proper investigation?   What happens when the investigator has a bias or prejudice against the accused?  Well, obviously the accused is not going to get a fair hearing because we all know that an investigator can slant the facts against the accused pretty easily.  And what happens when the judge is the type who rubber stamps the investigator's report and follows the recommendations made by the investigator?  Obviously, in these cases the accused is being deprived of a fair hearing because the judge has been unfairly biased prior to any evidence being presented in a court of law.

In light of the recent changes in family law that favor evidentiary hearings (i.e., Family Code Section 217 which directs courts to allow evidentiary hearings), Orange County is missing the boat by continuing on with this procedure, which seems to have been created as sort of a triage system.  As a family law attorney, I can say without a doubt that many restraining orders are obtained by people who are making false accusations, and using the restraining order process as a means to obtain an advantage on important issues such as child custody, visitation, and spousal support.  A victim of domestic violence can also obtain a larger share of the community property by filing suit against the alleged perpetrator.  Consequently, there are a lot of strategic reasons as to why family law litigants are motivated to file requests for restraining orders without basis for any actual domestic violence.  Unfortunately, the Orange County system, which stacks the deck in favor of the accusing party, only adds to the problem.