In Los Angeles, temporary restraining order (TRO) requests are handled the same day they are filed. The person asking for the TRO is called the "petitioner," who must make declarations under penalty of perjury about the allegations of abuse or harassment that have allegedly occurred.
Whether in a domestic violence restraining order or civil restraining order, the court will require some statements from the petitioner about the physical, emotional, or other types of abuse.
The judge reviews the petitioner's requested order, including any other people the restraining order is intended to protect, such as children living with a mother or father and even family pets.
The court must also review declarations or statements about current or past abuse that will fit under the definition of either civil harassment or domestic violence.
The legal term for the proof needed is "reasonable proof," which is the lowest standard in the California court system. There are a few main reasons why a temporary restraining order is granted with such a low amount of proof.
A temporary RO is a matter of immediate concern. It is limited in duration, lasting only for a few weeks until a hearing for a full restraining order is held. This urgency is due to the potentially dangerous situation it involves, such as a threat of violence or actual physical harm.
The court takes a balanced approach, carefully considering the impact a temporary restraining order will have on the accused person. This is weighed against the need for the petitioner to have legal protection, ensuring a fair and just process.
Due to the fact that temporary restraining orders require little evidence, you typically cannot prevent one from being filed against you. Still, you might be able to prevent the restraining order from becoming permanent.
What is a Domestic Violence Restraining Order?
The petitioner plays a crucial role in a domestic violence restraining order. They must understand the burden of proof needed, as a temporary restraining order expires on the day set for the permanent restraining order hearing.
A "preponderance of evidence" standard is used in domestic violence restraining orders because of the close nature of the relationships involved. Simply put, it's considered more likely than not to have occurred. The relationships involved in a domestic violence restraining order must be one of the following:
- Spouses,
- Co-habitants,
- Dating couple, or
- People who have children together.
The parties involved can be parent and child, grandparent and child, or siblings. Suppose the connection between the parties is something else. In that case, the restraining order would be a civil one, not domestic violence, which is criminal.
What is a Civil Restraining Order?
What is the burden of proof in a civil restraining order case? This type of restraining order covers people who do not have a qualifying relationship for a domestic violence order, such as:
- Neighbors,
- Co-workers,
- Business partners.
Since the parties' connection is usually far less than that of spouses or family, the court will require a much higher standard of evidence.
To obtain a permanent civil restraining order, the petitioner must prove their allegations with "clear and convincing" evidence, which goes far beyond simple declarations. Anyone seeking a civil restraining order must be prepared to present :
- Some physical evidence.
- Their written statements and testimony in court.
- Photographs. Images showing physical injuries or property damage can strongly support allegations of abuse.
- Text messages and emails. These can show threatening language or patterns of harassment. Screenshots or printed copies can be presented as proof of communication.
- Witness testimony. Statements from people who have witnessed incidents of domestic violence.
- Police reports. If law enforcement was involved, their reports could serve as substantial evidence detailing incidents and actions taken.
- Medical records. Documentation of injuries from domestic violence can support the petitioner's case.
The court will not consider a simple exchange of allegations. The petitioner must provide specific acts of harassment, threats, or physical harm as evidence.
Typically, these alleged acts must have occurred over some time to show a pattern and history of harassment from the accused. Third-party witnesses are one of the most effective pieces of evidence used to win or fight a restraining order.
How Can You Renew a Domestic Violence Restraining Order?
A restraining order can last up to five years. However, after expiration, the protected person can file a request for a domestic violence restraining order renewal (DVTRO) up to three months before it expires.
The judge will consider the request and has the authority to grant a permanent restraining order, which would be in existence until further court order. The DVTRO can remain in place for the restrained person's life.
California Family Code 6345 states that the court has the discretion to renew restraining orders upon the party's request, either for five years or permanently, without a further showing of abuse since the order's issuance.
In exercising its discretion, the court must inquire beyond only the petition party's simple desire to have the protective order extended. For example, just because a judge found sufficient grounds to grant a protective order three years earlier does not necessarily mean sufficient grounds remain.
When Are Restraining Orders Used?
In California, restraining orders are most commonly issued in domestic violence (DV) cases. Suppose you were accused of domestic violence. In that case, you need to understand what types of evidence can be presented against you.
Temporary restraining orders (TRO) require almost no evidence, and you will not typically have a chance to contest it before it expires. However, your accuser must present more concrete evidence to convince a judge to issue a long-term domestic violence restraining order against you.
Further, you will have the opportunity to respond to that evidence at the hearing, preferably with an attorney. Judges who decide on a restraining order case have different standards of proof depending on the type of case.
The process for getting a domestic violence restraining order typically starts with the person who claims to be a victim of abuse or harassment requesting a Temporary Restraining Order (TRO).
To obtain a TRO, the petitioner only has to submit sworn statements detailing the alleged abuse or harassment. At this point, the standard of proof is called "reasonable proof," meaning the petitioner only needs to show that it is reasonable to believe that abuse or harassment has occurred.
After a TRO is issued and you are served with it, you must follow the restrictions immediately. However, you also have the right to respond to the allegations.
This typically involves preparing a written response and attending a hearing where you can present your side of the story. Violations of a TRO can lead to criminal charges, including fines and imprisonment, and could impact your case during the final restraining order hearing.
What is a Final Restraining Order?
A TRO is designed to provide immediate, short-term protection and will remain in effect until the court holds a hearing, typically within 22 days, to decide whether a final restraining order should be issued.
At the restraining order hearing, the court will decide whether to issue a domestic violence restraining order (DVRO), which can last between three to five years.
The standard of proof for issuing a final DVRO is much higher than that for a TRO. For example, the judge will decide whether domestic violence occurred based on a "preponderance of the evidence," meaning more likely than not (51% or more) that the alleged abuse happened.
While this standard of proof is still lower than the "beyond a reasonable doubt" standard used in criminal cases, it gives the defendant an opportunity to challenge the evidence raised against them and to present evidence that exonerates them.
How Can You Defend a Domestic Violence Restraining Order?
Suppose you are accused of domestic violence and facing a restraining order. In that case, the situation is typically highly emotional. Having a final DVRO issued against you can carry harsh consequences that can impact your personal, professional, and financial life.
You need to retain an experienced domestic violence defense lawyer who knows how to challenge unfair evidence presented at your restraining order hearing and present any evidence to support your claims. Some of the common defenses against a domestic violence restraining order include the following:
- Showing inconsistencies in the petitioner's statements.
- Showing any weaknesses in the evidence presented.
- Showing a pattern of false accusations by the petitioner.
- Witness testimony that contradicts the petitioner's claims.
- Proving evidence of self-defense or mutual combat.
For additional information, contact our Los Angeles domestic violence defense lawyers. Cron, Israels & Stark is based in Los Angeles, CA.
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