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Old January 17, 2020, 06:51 AM   #16
zukiphile
Senior Member
 
Join Date: December 13, 2005
Posts: 3,825
Quote:
Originally Posted by Aguila Blanca
But the order wasn't issued. This was the first hearing on the matter.

One of the articles I read said something to the effect that the mother didn't request an immediate, ex parte hearing. That confused me, because I don't see anything in the law that makes that an option. That's another aspect that leads me to regard this case as a aberration under the law.
Then that's even more confusing. If there was no initial order, what was the Sheriff (an opponent of the RFL) refusing to serve on the respondent PO if it weren't the initial, temporary order? I just read some local stories, and I still don't get it.

A petitioner should not have to request an initial hearing that is mandated by statute, and it isn't normally within a court's discretion to postpone that hearing.

This looks like an episode in which the result at this point is correct, but the process was mangled to get there.

Quote:
Originally Posted by 44AMP
Legal eagles correct me if I'm wrong, (please!) but isn't the difference between the red flag enhanced protection order and the regular protection order just a matter of process and eligibility to apply?
Those are some of the differences.

A regular civil temporary restraining order begins with a complaint requesting the TRO (good only for a short period), a temporary injunction (good for the pendency of the case, and a permanent injunction (an order that the defendant can't do X at all). The burden for a TRO, which can be ex parte, is more than a preponderance of the evidence, a probability that the Plaintiff will prevail, and requires the plaintiff to post a bond. In practice, this means one needs to convince the court that the TRO is necessary to avert a damage that can never be rectified. That basic structure informs somewhat abbreviated processes in criminal and domestic matters, but the idea is that quick action is balanced by safeguards and notice to the party affected.

The Red Flag initial hearing can be ex parte, and only requires that the petitioner's testimony be uncontroverted. Metaphorically, it's an intersection with a malfunctioning signal.
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