It’s hard to say who got more facetime on TV last week—Charlie Sheen, or Muammar Gaddafi. Ironically, the media has even been portraying both of them in a similar light. But regardless of how narcissistic and outrageous Charlie Sheen has appeared in interviews this past week, it can’t be fair to compare him with a tyrannical dictator believed to be responsible for hundreds (if not thousands) of unjustified killings.

On Tuesday, police showed up to Sheen’s Beverly Hills home to remove his 23-month-old twin sons, Max and Bob, in connection with a temporary restraining order (TRO) filed by Sheen’s estranged wife, Brooke Mueller. Ordinarily, police can’t knock on your door, flash some court order in your face, and take your kids away, because under normal circumstances, this violates due process. Due process is the legal doctrine that guarantees every American the right to notice, and an opportunity to be heard, before the state can take away any fundamental right (such as the right to parent your children).

A TRO, however, is an ex parte order, which means that in extraordinary circumstances, a court may issue the order without first affording notice to the other party. The law pertaining to ex parte orders in California goes like this:

(c) No temporary restraining order shall be granted without notice to the opposing party, unless both of the following requirements are satisfied:

(1) It appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the matter can be heard on notice.

(2) The applicant or the applicant’s attorney certifies one of the following to the court under oath:

(A) That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party’s attorney at what time and where the application would be made.

(B) That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party’s attorney, specifying the efforts made to contact them.

(C) That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party’s attorney.

Cal. Code of Civ. P. § 527.

In addition, the essence of any injunction, such as a TRO, is irreparable harm. The party seeking the TRO must demonstrate to the court that they will suffer irreparable harm if the court does not issue the order immediately.

In this case, Mueller told the court that Sheen threatened to cut off her head, and send it to her mother in a box, and convinced the court that Sheen should not be given notice of the TRO hearing because she feared that he would hurt her, or that he would remove the twins from the court’s jurisdiction.

Brooke Mueller_mugshot_2009.jpg

Whether Sheen actually said that to Mueller or not, is beside the point, because despite the graphic descriptiveness of the alleged threat, it’s only words, and it doesn’t demonstrate a likelihood of irreparable harm. On the flip side, however, the judge who rules on the TRO application cannot ignore the threats altogether, because he or she will ultimately get blamed if the defendant does cause some harm in the future. If Sheen’s attorney had been able to respond to Mueller’s motion, the TRO probably doesn’t get granted, but that’s usually not how it goes. It is for that very reason that TROs are considered extraordinary remedies, which should not be handed out freely. In my opinion, the judge jumped the gun.

Under California law, the court must hold a “show cause hearing” within 22 days. The purpose of a show cause hearing is for the accused to have a chance to respond to the allegations, somewhat like due process, except that in this scenario the accused has already been deprived of a fundamental right or liberty. Sheen’s hearing is set for March 22, which is the same day that the TRO expires. Unless Sheen does something really stupid between now and March 22nd, there will be no further injunctions, and the court will grant visitation rights to Sheen. But that won’t be the end of the story.

Sheen’s and Mueller’s divorce won’t be final until at least May, and unless they come to some kind of agreement, the decision on who will get custody of the twins won’t be resolved till much later. My guess is that Mueller filed for the TRO because she saw an opportunity based on Sheen’s vulnerability stemming from his recent personal and professional conflicts and controversy as played out in the media. Based on some of the things that Mueller stated in her affidavit in support of the TRO, it appears that both parties have been engaging in some heavy duty negotiations, and my guess is that Mueller is only using this as a means to get an upper hand in those negotiations. Maybe it’ll work. Then again, maybe it’ll blow up in her face (no pun intended).

Download a copy of the court’s order, which includes Brooke Mueller’s affidavit, and screen shots of the threatening text messages that she alleges Sheen sent to her iPhone. In Re Marriage of Sheen_TRO_2011_02_28.pdf

 

Disclaimer: I’m not licensed to practice in the state of California. The general legal principles of injunctions and family court litigation are common to many jurisdictions, and this post was intended to provide an overview of those procedures.