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Hogskin
03-01-2012, 4:26 PM
My best friend is going through a very screwy situation. He has a mother-in-law that is a total p.i.t.a. Since the day he got married she has always meddled in his marriage and in his parenting of his kids. The guy has been a saint toward her (I would have told her to get lost years ago). Last Christmas she started in on him about various things and he finally came uncorked, told her where to go and stormed out of her house with his wife & kids in tow.

Since then the MIL has seen the kids only a few times (he wants his kids to have time with their grandmother because he knows they enjoy it). The woman is a beast but she does love the kids, but I wouldn't let her take them. The interactions between the MIL and my friend are barely civil. His attitude is "You can see the kids but otherwise stay the hell away from me and your daughter" (BTW, the daughter is in agreement with my friend). The MIL is trying weasel back into their lives and is making murmurings about filing a RO against my friend and calling DFS on him. For what I have no idea - he & his wife are two of the most gentle people I know.

Questions (finally!):
Can he transfer the guns to me in case she starts in with this BS?
He has some long guns, many of which are very old (i.e., not in the system). Would those have to be transferred too?
How is it determined that he has complied with the RO requirement of surrendering firearms?
Any advice on how to proceed is appreciated.

ryno066
03-01-2012, 4:32 PM
Keep copies and notes on all the goings on.
What is DFS?

berto
03-01-2012, 4:37 PM
All guns would need to go, not in the system doesn't matter.

The sellers copy of DROS should provide proof he's no longer in possession.

Talk to an atty.

Your friend really needs to cut MiL out completely. Not seeing the grandkids is a consequence of being toxic. Allowing her access enables her behavior. It sucks for the grandkids but it's certainly better than their parents spending thousands of dollars fighting grandma and possibly going to jail. Big picture.

Hogskin
03-01-2012, 5:21 PM
ryno - DFS = family services

berto - I agree with you about cutting MIL out of the picture completely, I told him the same thing. His kids really love the crazy old bag and he's allowing contact for their sake, not hers.

If he were to transfer registration to his wife would he still be in violation? I would take them for awhile as he's a good friend but I also would like to stay out of this as much as possible.

Thanks for the replies.

RandyD
03-01-2012, 5:26 PM
Questions (finally!):
Can he transfer the guns to me in case she starts in with this BS?
He has some long guns, many of which are very old (i.e., not in the system). Would those have to be transferred too?
How is it determined that he has complied with the RO requirement of surrendering firearms?
Any advice on how to proceed is appreciated.

I am an attorney and frequently represent parties involved in restraining orders.

Your friend sounds like he is exercising good judgment in handling the situation. It sounds like the MIL is aggressive, and your friend may want to consider taking some proactive steps to protect himself from the eventuality of having a restraining order imposed upon him.

First keep tell him to keep accurate notes of everything that is said or occurs between his family and the MIL. I would advise him to distance himself as far as he and the wife can from the MIL. She is trouble.

I do not know what DFS is, are you referring to Child Protective Services?

Once a restraining order is served, your friend has to sell his all of his firearms to a FFL or surrender them to a law enforcement agency. This includes all firearms regardless if they are registered or unregistered. There is no other alternative. In a proactive approach, he can sell them to you now, and when the situation resolves, you can sell them back.

The court and law enforcement would most likely not know of the existence of the firearms that he owns that are not in the system, but if he is served a restraining order he will have to state that all of his firearms have been either been sold or surrendered. When he is entitled to get them back, he will no longer be able to claim possession of firearms that are not registered to him.

The determination that he has either sold or surrendered his firearms is a form that he completes and signs under the penalty of perjury. I am not aware of the court or law enforcement agencies investigating this issue further except in cases where there are allegations that he has not complied.

My personal advice to your friend is to cut off all contact with the MIL until she learns how to act like a family member. Given all of the circumstances discussed above, she is placing your friend in an undesireable situation that will greatly inconvenience him even if the restraining order is found to be unwarranted. She is no friend and I would not want my children around someone like that.

Pixs
03-02-2012, 10:47 AM
I am an attorney and frequently represent parties involved in restraining orders.

Your friend sounds like he is exercising good judgment in handling the situation. It sounds like the MIL is aggressive, and your friend may want to consider taking some proactive steps to protect himself from the eventuality of having a restraining order imposed upon him.

First keep tell him to keep accurate notes of everything that is said or occurs between his family and the MIL. I would advise him to distance himself as far as he and the wife can from the MIL. She is trouble.

I do not know what DFS is, are you referring to Child Protective Services?

Once a restraining order is served, your friend has to sell his all of his firearms to a FFL or surrender them to a law enforcement agency. This includes all firearms regardless if they are registered or unregistered. There is no other alternative. In a proactive approach, he can sell them to you now, and when the situation resolves, you can sell them back.

The court and law enforcement would most likely not know of the existence of the firearms that he owns that are not in the system, but if he is served a restraining order he will have to state that all of his firearms have been either been sold or surrendered. When he is entitled to get them back, he will no longer be able to claim possession of firearms that are not registered to him.

The determination that he has either sold or surrendered his firearms is a form that he completes and signs under the penalty of perjury. I am not aware of the court or law enforcement agencies investigating this issue further except in cases where there are allegations that he has not complied.

My personal advice to your friend is to cut off all contact with the MIL until she learns how to act like a family member. Given all of the circumstances discussed above, she is placing your friend in an undesireable situation that will greatly inconvenience him even if the restraining order is found to be unwarranted. She is no friend and I would not want my children around someone like that.

Randy D, thank you for your professional advice, it is good to see this as I was in a similar situation many years ago. If I could impose and ask another question: should the guy in the OP file a RO against the MIL?

RandyD
03-02-2012, 12:36 PM
Randy D, thank you for your professional advice, it is good to see this as I was in a similar situation many years ago. If I could impose and ask another question: should the guy in the OP file a RO against the MIL?

The answer is no. The MIL is threatening to file for a restraining order. She is entitled to do this, however the court may refuse to issue a temporary restraining order. You cannot use a restraining order to prohibit someone from doing something they are legally entitled to perform.

liketoshoot
03-02-2012, 12:47 PM
.

First keep tell him to keep accurate notes of everything that is said or occurs between his family and the MIL. I would advise him to distance himself as far as he and the wife can from the MIL. She is trouble.

document document document every thing she says or does around you and the wife.
Good luck

gun toting monkeyboy
03-02-2012, 12:55 PM
The answer is no. The MIL is threatening to file for a restraining order. She is entitled to do this, however the court may refuse to issue a temporary restraining order. You cannot use a restraining order to prohibit someone from doing something they are legally entitled to perform.

Rather than filing an TRO to keep her from filing one herself, could he preemptively file one to keep her away from him? One that allows her to have contact with the grandchildren, but not him? And would that help his case later on if she turns around and tries to file one on him?

-Mb

Pixs
03-03-2012, 8:44 AM
Rather than filing an TRO to keep her from filing one herself, could he preemptively file one to keep her away from him? One that allows her to have contact with the grandchildren, but not him? And would that help his case later on if she turns around and tries to file one on him?

-Mb
This is the thought I had when I asked my question, I should have been more clear.

littlejake
03-03-2012, 9:03 AM
On what grounds. RO's have to be proven in a hearing to be granted. The MIL may be a loud, PITA -- but, unless there exists a possibility of harm or abduction of the kids, there is no grounds and it likely would not be granted.

OP -- put up signs that you audio and video record on the premises. Then record her rants. She has tacitly agreed to be recorded if she enters an area where prominent signs warn her of recording. CA is a 2 party consent state for recording -- but that consent exists if they are on notice.

anthonyca
03-03-2012, 9:52 AM
Filling BS restraining orders just to get back at someone should be a serious crime!

Is there anyway to get an email, letter or recording (in a public place) of her stating that she intends to file a false restraining order?

RandyD
03-03-2012, 12:16 PM
Rather than filing an TRO to keep her from filing one herself, could he preemptively file one to keep her away from him? One that allows her to have contact with the grandchildren, but not him? And would that help his case later on if she turns around and tries to file one on him?

-Mb

In the posts, I did not read any facts that would support a TRO against the MIL. It is improper to seek a restraining order for the purpose of preempting the other person from obtaining one.

cacop
03-03-2012, 4:39 PM
Can he transfer the guns to me in case she starts in with this BS? IIRC he can. I think it is easier to a family member. I remember a case where a wife beater transfered his guns to his father who kept them for him for three years. He got his guns back eventually but he was playing with fire as his domestic violence case was continued for a year as part of a plea agreement before it was dropped. (Our DA does really goofy things when it comes to DV. Some of which I am not entirely sure are legal but since it benefits the defendant no one complains.)
He has some long guns, many of which are very old (i.e., not in the system). Would those have to be transferred too?Yes.
How is it determined that he has complied with the RO requirement of surrendering firearms?No one really checks, at least in my county. We have had people tell us "my ex still has a gun" but it is hard to get a warrant. Not impossible but hard.
Any advice on how to proceed is appreciated.

I would recommend he play nice with the MIL. What does his wife think of the situation?

TROs do get handed out for conduct less than a crime.

ColdDeadHands1
03-03-2012, 6:51 PM
Once a restraining order is served, your friend has to sell his all of his firearms to a FFL or surrender them to a law enforcement agency.

I have often wondered about this. If ever I find myself in this situation, I want to be prepared. So, taking what you wrote literally, I have to sell my firearms to a FFL, not go to a FFL and transfer them to someone else (friend or family). Could a friend or family member go with me to said FFL and once I complete my sale to the FFL, proceed to buy them all?

anthonyca
03-03-2012, 7:07 PM
There should be a sticky on restraining order and DV situations. This has to be one of the most common questions asked in here.

anthonyca
03-03-2012, 7:08 PM
I have often wondered about this. If ever I find myself in this situation, I want to be prepared. So, taking what you wrote literally, I have to sell my firearms to a FFL, not go to a FFL and transfer them to someone else (friend or family). Could a friend or family member go with me to said FFL and once I complete my sale to the FFL, proceed to buy them all?

I am currious about this also.

Librarian
03-03-2012, 7:20 PM
I have often wondered about this. If ever I find myself in this situation, I want to be prepared. So, taking what you wrote literally, I have to sell my firearms to a FFL, not go to a FFL and transfer them to someone else (friend or family). Could a friend or family member go with me to said FFL and once I complete my sale to the FFL, proceed to buy them all?

You have to take it literally - because that's the plain language of the law: Family Code 6389 6389.
(a) A person subject to a protective order, as defined in Section 6218, shall not own, possess, purchase, or receive a firearm or ammunition while that protective order is in effect. Every person who owns, possesses, purchases or receives, or attempts to purchase or receive a firearm or ammunition while the protective order is in effect is punishable pursuant to Section 29825 of the Penal Code.
...
c) (1) Upon issuance of a protective order, as defined in Section 6218, the court shall order the respondent to relinquish any firearm in the respondentís immediate possession or control or subject to the respondentís immediate possession or control.

(2) The relinquishment ordered pursuant to paragraph (1) shall occur by immediately surrendering the firearm in a safe manner, upon request of any law enforcement officer, to the control of the officer, after being served with the protective order. Alternatively, if no request is made by a law enforcement officer, the relinquishment shall occur within 24 hours of being served with the order, by either surrendering the firearm in a safe manner to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer, as specified in Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2 of Division 6 of Title 4 of Part 6 of the Penal Code. The law enforcement officer or licensed gun dealer taking possession of the firearm pursuant to this subdivision shall issue a receipt to the person relinquishing the firearm at the time of relinquishment. A person ordered to relinquish any firearm pursuant to this subdivision shall file with the court that issued the protective order, within 48 hours after being served with the order, the receipt showing the firearm was surrendered to a local law enforcement agency or sold to a licensed gun dealer. Failure to timely file a receipt shall constitute a violation of the protective order.
It appears that once the restrained person has the receipt, the FFL may re-sell the firearms.

RandyD
03-03-2012, 7:45 PM
I have often wondered about this. If ever I find myself in this situation, I want to be prepared. So, taking what you wrote literally, I have to sell my firearms to a FFL, not go to a FFL and transfer them to someone else (friend or family). Could a friend or family member go with me to said FFL and once I complete my sale to the FFL, proceed to buy them all?

As Librarian stated and set forth the statute, anything other than strick compliance could make your situation worse.

About a year ago, I represented a client who was served a restraining order and his firearms were located at a family member's house in Montana. We informed the judge of this circumstance and stated that my client could not comply with the order, by selling or surrendering his firearms. The judge became upset, and I posed the scenario to the judge, that it would take my client two days to travel 1200 miles to Montana, and by the time he arrived, he would have violated the restraining order by timely surrendering or turning in the firearms. The judge let the matter drop.

Dooligan
03-29-2012, 2:20 PM
I just wanted to publicly thank RandyD for taking time out of his day to help me even though we have never met.

I now believe I have a course of action, and I will gather my resources so they are ready, but give the other party an opportunity to cease...

Thanks again, Randy. I feel much clearer now.