Split Decisions: Dueling Restraining Orders

When does toxic behavior in a marriage become domestic abuse. And when does the evidence fall short of a restraining order?

In this episode of Split Decisions, veteran family law attorneys Tim Miranda and Carlos Tavares face off in a high-stakes mock trial debate over one of the most emotionally charged issues in family court: domestic violence restraining orders.

The case involves a couple married for 23 years with two teenage children. The wife alleges years of intimidation, verbal abuse, stalking through technology, and controlling behavior. The husband admits to drinking, swearing, and using the Tesla app to “mess with” her,  but denies any abuse ever occurred.

Should the court grant legal protection based on emotional intimidation and digital monitoring?
Or does the evidence fail to meet the legal standard for a restraining order?

Watch both attorneys argue opposite sides of the case in under four minutes each as they break down courtroom strategy, burden of proof, credibility, and the realities of domestic violence claims in family court.

In this episode:
• Domestic violence restraining orders (DVROs)
• Emotional abuse & coercive control
• Technology, stalking, and privacy concerns in relationships
• Family court standards for protective orders
• Marriage conflict, credibility, and legal evidence
• Mock trial debate with experienced family law attorneys

You be the judge.
Whose argument was stronger?
Should the restraining order be granted?

Vote in the comments and subscribe to The AM Sidebar for more episodes of Split Decisions, where legal arguments collide and the audience decides the outcome.

Transcript

SPEAKER_01 0:06

Every trial has two sides. Which one wins? You be the judge.

SPEAKER_00 0:11

This is split decisions, where veteran divorce attorneys go head to head over real-life scenarios often seen in family courts. We'll each have up to four minutes to make our case with the moving party getting the final word. Who wins? You decide.

SPEAKER_01 0:32

Here's the case on today's docket. The couple has been married for 23 years. They have two teenage children. One spouse, the wife, is alleging domestic abuse. The other spouse, the husband, denies it ever happening. The question is: should the restraining order be granted along with full custody and financial support?

SPEAKER_00 0:52

I'm Carlos Tavares, and I'll be representing the wife.

SPEAKER_01 0:55

And I'm Tim Miranda, and I'll be representing the husband. Alright, let's get into the initial arguments.

SPEAKER_00 1:01

Your Honor. The evidence was boiled down to a he said, she said. Wife shows a lifetime of badgering, being overtly in her face, swearing at her constantly. She alleged that she was being stalked through her Tesla app and through her phones. We had witnesses that confirmed that husband liked to F-bomb people and get in their personal space. The coworker testified to numerous incidents where he was upset with her during work events and got right in her face and started to swear at her with a liberal smattering of the F-word. On one occasion in the airport, after it was done, one of the people in the airport came over to her and told her that she didn't have to put up with that, thinking she was witnessing a domestic abuse situation. It was really just husband with a coworker. My client testified to numerous events similar to that. Wife also brought in two technical individuals, one who provided video showing that her computer was being tracked in real time and advising her to have her electronic components checked by a professional. The second individual commenced a deep dive forensic on her computer, and while he testified he found numerous anomalies, he wasn't quite able to say or find anything that was clearly dispositive. The issue today is does wife have a reasonable apprehension of domestic abuse by husband? She lays out numerous facts where she doesn't like the way he is treating her and needs some space. His testimony was yes, I use the F-word regularly, I may speak loudly, and I may be close in proximity when I do that, but everything else is false. He denied ever trying to stalk her through her Tesla app, though he did testify that he did on one or two occasions pop her trunk when she was by the car or lock her out as a joke. So at the end of the day, we have two distinct people saying two different things that he said, she said. As the court knows, physical abuse is not required. Under 6320, abuse includes, quote, harassing, telephoning, making annoying telephone calls, or disturbing the peace of the other party. As used in Subdivision A of 6320, disturbing the peace of the other party refers to conduct based on the totality of the circumstances destroy the mental or emotional calm of the other party. That is the question the court is being asked to address today. Did husband's conduct or habit of constantly getting in wife's face whenever he was upset and being very comfortable F-bombing her in the presence of their children, does it give rise to a restraining order? I would ask the court to grant the request in that it does give rise. Husband is six foot three, my client is five foot seven. He is a very large figure and imposing, and when he gets in her face, it can be a very intimidating thing. He did not dispute any of that conduct. I would suggest that within the confines of the statute, that such conduct, quote, destroys the mental or emotional calm of the other party. Thank you, Your Honor.

SPEAKER_01 4:31

Thank you, Your Honor. Mr. Tavaris indicated that this was a case of he said, she said. That's great because Mr. Tavaris' client bears the burden of proof and production. You have to consider that through the lens of Evidence Code Section 412. What was pleaded, what evidence was induced at this trial, and what do you have upon which to issue a restraining order? This was a 23-year marriage, so one would expect from the onset that there would be a history of abuse. There would be something of substance after 23 years when a divorce is filed, that someone comes in and says, I need a restraining order from my husband. But what do you have? You have evidence that he drinks. He admits that he drinks. Drinking is legal in California. Drinking has been legal in the United States since 1933 with the repeal of the Volstead Act. That's not gonna do it. He uses expletive. Well that's great because words aren't enough. He drops the F-bomb. He can be loud. Maybe when he drinks. Have you ever been to a football game or a baseball game? That's not a restraining word. He's at the airport. Some unknown person who came in supposedly said, hearsay, this is abuse, or you don't have to take it. I guess they should have done something about that if they thought it was so acute. Maybe she should have done something about it at that time if it really were abuse, if it really were destroying her mental calm, but she didn't. Mr. Tavares was correct. You don't need physical violence to issue a restraining order, but it probably would have helped in this case because what was pleaded were pokes or slaps. That's not in 6320, that's not in 6203, and that just sounds like a concocted way of having some physical element in this case. What about the stocking, the technological problems? Login issues for email and bank accounts, problems with the Tesla, can't access Wi-Fi. That sounds like a typical day in Southern California for most people that work and have Wi-Fi and drive a Tesla. I don't see any stocking. And certainly the technological individuals, those witnesses, not experts, right? Individuals. They didn't detect anything. There were some anomalies, but nothing dispositive, according to Mr. Tavares. So the evidence fails. Mean to the kids. You have two teenagers. One is 16, one is 13. They both have iPhones. Neither one of them testified. Neither one of them said, Dad is mean to me. So in that circumstance, what would you do? Nothing. You don't protect them. The practical consideration there is a custodial order. And then what will the kids do? What will the 16-year-old do if he doesn't like his dad? He'll stay away. Financial abuse. That was thrown in to establish coercive control to try to get another element that would be part of 6320. But he pays the mortgage and he deposits money into the bank account every month. How is that controlling? Oh, it's not as much money per month as she wants, but that's why she filed a motion for spousal support. Her own sister talked about seeing my client drinking. Okay, we've established that. But she never saw anything that rose to the level of abuse that's been described here. Finally, what's the mandate? What is the legislative mandate for you, Your Honor? What do you have to compel a restraining order? Destroys the mental or emotional calm under Ned Carney? Absolutely not. Some subjective fear, maybe. Is it objectively reasonable? Of course not. 6220? That provides that the parties, and this is the mandate, a restraining order should issue only if there's a separation of time required to resolve, or whatever that says specifically. But the point is they filed for divorce, there's a separation. She filed for support, there's the money she needs, and she's filed for custody. So that's gonna resolve the children. No restraining order should issue ever on these type of facts. Thank you, Your Honor. We've heard each other's points. Now it's time for rebuttal.

SPEAKER_00 8:53

Alright, thank you, Honor. One final comment. I guarantee that if an individual who is six foot three got into your face nose to nose, and in an angry and overt way started to swear at you with a liberal use of the F-word, it would destroy your calm. Those are our cases. You be the judge. Cast your vote in the poll and comments and tell us who made the stronger case.

SPEAKER_01 9:21

This has split decisions with Tim Miranda and Carlos Tavares. Subscribe for more debates where the arguments collide, and you decide.