Full question:
My brother was recently arrested following a domestic dispute with his wife, although he was the one who called the police on his wife. After he was bailed out he requested a police escort to accompany him to the house to pick up a few of his personal items. While he was there his wife requested of the police officer, a temporary restraining order against my brother. The temporary restraining order expires today and at this point he just wants to return to the house to collect the remainder of his personal belongings. How should he proceed legally? Also he does not want a confrontation with his wife but at the same time he needs his personal items.
- Category: Restraining Order
- Date:
- State: California
Answer:
A restraining order may be issued to a person who is a victim of harassment. A restraining order is a court document that is an order signed by a judge. Typically, civil court orders are not published in newspapers, but violations of criminal restraining orders will become part of one's legal record. The restraining order may expire by statute or remain in effect until vacated by the court. The order may or may not be issued ex parte, or without both parties to the order present. In certain cases, a judge may require testimony by both sides before issuing a restraining order.
A spouse generally may not be denied access to the marital home unless prevented from doing so by a court order. Although the husband may have a legal right to access, it may be advisable to have a trusted friend act on his behalf and request the items be received by the friend in order to minimize the potential for further conflict.
Conversion is a action brought in civil court to recover the value of personal items of property, wrongfully converted by another to his own use. The action seeks a remedy for the conversion, not the taking of the item. If the items are of a unique nature, so that money can’t replace the item, a writ (official order) of replevin may be sought in court. A replevin petition seeks the return of the particular items taken.
Conversion is when someone wrongfully uses property of another for their own purposes or alters or destroys it. In an action for conversion, the taking of the property may be lawful, but the retaining of the property is unlawful. To succeed in the action, the plaintiff must prove that he or she demanded the property returned and the defendant refused to do so. Damages may be recovered for the replacement value of the property as well as for the loss of its use. Conversion is very similar to theft, but is a civil action, not a criminal action.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
