In California, restraining orders, most commonly issued in domestic violence cases, carry significant, long-term consequences. These include restrictions on your freedom of movement, social interactions, and even your right to possess firearms. The gravity of these consequences underscores the importance of understanding the legal procedures and evidence requirements.
Suppose you find yourself accused of domestic violence and facing a restraining order in California. In that case, it's crucial to grasp the legal standards and the types of evidence that can be presented against you. This understanding empowers you to provide evidence that can refute the allegations, ensuring a fair hearing.
While temporary restraining orders require almost no evidence (and you'll likely be unable to contest one before it expires), your accuser will need to present some more concrete evidence to convince a judge to issue a longer-term domestic violence restraining order against you.
You will have the opportunity at the hearing, preferably with an attorney, to respond to that evidence.
Many people seeking to file or defend a restraining order have yet to learn what evidence is needed to have it granted. A judge who decides on a restraining order case has different standards of proof depending on the type of case.
In California, any individual can file the court papers required for a temporary restraining order. In Los Angeles, temporary restraining order requests are handled the same day they are filed. A judge in each courthouse is assigned to review every restraining order request submitted that day.
Being served with a DV-110 Temporary Restraining Order (TRO) in California is a serious matter that demands immediate attention and a thoughtful response.
The person seeking an order is called the "Petitioner." This person must make declarations under penalty of perjury about the allegations of abuse or harassment that have occurred.
Whether in a domestic violence restraining order or civil restraining order, the court requires some statements about physical, emotional, or other types of abuse that have occurred.
The judge will consider the individual's requested order and any other persons it is intended to protect. The judge's role is to impartially evaluate the evidence and make a decision based on the legal standards and the facts presented.
A civil restraining order covers people who don't have a qualifying relationship for a domestic violence order. These cases often involve neighbors, co-workers, and business partners.
The civil restraining order process is separate from the criminal justice system, but it often overlaps with criminal proceedings, especially when criminal charges are involved.
Since the parties' connection is usually far less than that of spouses or family, the court requires a much higher standard of evidence in these cases.
Evidence for a Temporary Restraining Order
The process of obtaining a domestic violence restraining order typically starts with the petitioner, who is the person who claims to be a victim of abuse or harassment-requesting a Temporary Restraining Order (TRO).
In California, the threshold for obtaining a TRO is quite low, and the accused, referred to as the respondent, is often not even present to raise a defense. To obtain a TRO, the petitioner must typically only submit sworn statements detailing the alleged abuse or harassment.
These statements form the primary basis of the judge's decision to issue a TRO. The standard of proof at this stage is known as "reasonable proof," which means that the petitioner only needs to show that it is reasonable to believe that abuse or harassment has occurred.
Once the TRO is issued and you are served with it, you must abide by its restrictions immediately. Violating a TRO can lead to possible criminal charges, including fines and imprisonment, and can significantly impact your case during the final restraining order hearing.
That said, a TRO is intended to provide immediate, short-term protection. It remains in effect until the court holds a hearing, usually within 22 days of the TRO, to decide whether a final restraining order should be issued.
Evidence for a Final Domestic Violence Restraining Order
The more significant challenge comes at the restraining order hearing, where the court determines whether to issue a Domestic Violence Restraining Order (DVRO). Unlike a TRO, which is intended to provide immediate, short-term protection, a DVRO can last between 3 to 5 years.
The standard of proof for issuing a final DVRO is higher than that for a TRO. The judge will decide whether domestic violence occurred based on a "preponderance of the evidence," meaning the judge must find it more likely than not (i.e., 51% or more) that the alleged abuse happened.
While this standard of proof is still significantly lower than the "beyond a reasonable doubt" standard used in criminal cases, it does give you, as the defendant, the opportunity to challenge the evidence raised against you and to present evidence that exonerates you.
What is the Burden of Proof in a Civil Restraining Order Case?
To obtain a permanent civil restraining order, the petitioner must prove their allegations to the court with "clear and convincing" evidence, which is convincing evidence that goes far beyond simple declarations. Anyone seeking such an order must be prepared to present some evidence in addition to their written statements and testimony in court.
This standard means that the court must see photographs, text messages, e-mails, or any other physical evidence that can support the petitioner's claims. The court will not entertain a simple exchange of allegations.
The petitioner must provide specific acts of harassment, threats, or physical harm as evidence. Typically, these acts must occur over a period of time to demonstrate a pattern of harassment from the accused.
Often, the most effective evidence used to win or fight a restraining order is using third-party witnesses. A witness who has little connection to either party and no stake in the outcome of the case can be a powerful factor for the Judge.
Third-party witnesses often find it difficult to get into court without issuing a subpoena for their appearance. However, with some evidence on top of the petitioner's testimony, it is easier to win a restraining order case.
What Types of Evidence are Considered in a Domestic Violence Case?
At the restraining order hearing, your accuser has the opportunity to present various types of evidence to substantiate their claims. Understanding these can aid in preparing your defense. Common forms of evidence include:
- Text Messages and Emails: These can reveal threatening language or patterns of harassment. Screenshots or printed copies may be presented as proof of communication.
- Photographs: Images depicting physical injuries or property damage can strongly support allegations of abuse.
- Witness Testimonies: Statements from individuals who have witnessed incidents of domestic violence or can speak to the relationship dynamics can be influential.
- Medical Records: Documentation of injuries attributed to domestic violence can support the petitioner's case.
- Police Reports: If law enforcement has been involved, their reports can serve as substantial evidence detailing incidents and actions taken.
How to Defend Against a Domestic Violence Restraining Order
Suppose you've been accused of domestic violence and are facing a possible restraining order. In that case, you should recognize that these cases are often highly emotional, and the evidence presented may not always be as clear-cut as it seems.
The consequences of having a final DVRO issued against you can be severe, affecting your personal, professional, and financial life.
Your best hope of avoiding these outcomes is to hire an experienced attorney who can help you challenge unfair evidence presented at your restraining order hearing and present any countering evidence to support your claims. Examples of how this may play out include:
- Demonstrating inconsistencies in the petitioner's statements or evidence presented.
- Providing witness testimonies that contradict the petitioner's claims
- Proving a pattern of false accusations by the petitioner
- Presenting evidence of self-defense or mutual combat, if applicable
Contact our Los Angeles domestic violence defense lawyers for additional information.
Our certified specialists are available 24/7 to take your call and offer a free immediate response by phone. To be fairly compensated for time spent on criminal defense strategy, the Eisner Gorin law firm offers paid office consultations. The office consultation retainer will depend on the time spent and the seriousness of the allegations.
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