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What Proof Is Needed for a Restraining Order?

Many people who are seeking to file or defend a restraining order have no idea what evidence is needed in order to have an order granted. A Judge who is deciding on a restraining order case has different standards of proof depending on the type of case.

Proof for Temporary Restraining Orders

The court papers required for a temporary restraining order in California can be filed by any individual. In San Diego and many courts in California, 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.

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 has 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 has occurred.

The Judge will look at the individual's requested order, including any other persons the order is intended to protect. Small children living with a mother or father will often be included in the order. However, anyone over the age of 18 will almost always have to see their own restraining order. The Court must also see some declarations or statements about current or past abuse that fit under the definition of either civil harassment or domestic violence. The level of evidence required at the temporary restraining order stage is very low. The technical term for the proof needed is “reasonable proof.”

Reasonable proof is the lowest standard we have in the Court system. The reason why a temporary order is granted with such a low threshold is two-fold.

  1. A temporary order by nature is limited in duration. A temporary order will only last for a few weeks until a hearing for a full restraining order is held.
  2. It involves a situation which may be extremely dangerous such as a threat of violence or actual physical harm.

The Court will balance the intrusion and impact a temporary restraining order has for the accused against the need for the petitioner to have legal and police protection.

Proof Needed for a Domestic Violence Restraining Order

A temporary restraining order expires on the day set for a permanent restraining order hearing. During this hearing, a Judge will listen to testimony from all parties and consider declarations submitted to the Court in writing. The level of proof necessary at this type of hearing is called “Preponderance of Evidence.”

The preponderance standard is used in domestic violence restraining order cases because of the close nature of the relationships involved. A good way to look at this level of proof is a fact alleged is more likely than not to have occurred. Or in the alternative, if the Judge thinks that an alleged incident is 51% likely to have occurred then this will meet the burden of proof.

Preponderance of evidence does not require more than the truthful testimony of the person seeking the order. If a Judge hears from an individual about past cases of physical or emotional abuse without a good explanation from the other side, a restraining order can be granted.

The relationships involved in a domestic violence restraining order must be spouses, co-habitants, a dating couple, or people who have children together. The parties involved can be parent and child, grandparent and child, or siblings. If the connection between the parties is something else, like neighbors, then the restraining order is a civil one, not domestic violence.

What is the Burden of Proof in a Civil Restraining Order Case?

A Civil Restraining Order covers those individuals who don’t have a qualifying relationship for a domestic violence order. These cases often involve neighbors, co-workers, business partners and sometimes strangers. Since the connection between the parties is usually far less than that of spouses or family, the Court requires a much higher standard of evidence in these cases.

To obtain a permanent civil restraining order the Petitioner must prove their allegations to the court with “Clear and Convincing” evidence. Clear and convincing evidence goes far beyond simple declarations. Anyone seeking such an order must be prepared to present some evidence in addition to their own 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 claims made by the Petitioner. 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, in order 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 are often difficult to get into Court without issuing a subpoena for their appearance. However, without some evidence on top of the petitioner's testimony, it is difficult to win a restraining order case.

Do I Need an Attorney to Fight a Restraining Order?

If you've had any type restraining order filed against you, it's essential that you hire a criminal attorney to defend you in court. Even if you are innocent of all charges, you may still face serious consequences if you don't have a thorough and solid defense. It is especially important to have a skilled attorney by your side for a domestic violence restraining order, since the court requires very little evidence of proof in these cases. The sooner you call and attorney, the better your chances are of fighting the allegations against you. Contact the Law Office of George Gedulin today!