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Defense strategy for domestic violence restraining orders in California

by Stan Burman

Defense strategy for domestic violence restraining orders in California is the topic of this blog post.   

If someone has filed a request for a restraining order against you in California you must utilize an effective restraining order defense strategy.  I cannot stress this enough because if a restraining order is entered against you that can have very serious consequences that can and will negatively impact your life, both in the present and in the future.

For example many permanent restraining orders in California have a typical duration of 3 years and in some cases even longer, and if you violate a restraining order, or even are alleged to have violated a restraining order you  are subject to arrest.

Other negative consequences that can result from having a restraining order entered against you is that the restraining order can limit or even temporarily eliminate your rights under the Second Amendment to the United States Constitution to own or possesses any guns, firearms or even ammunition.  In many cases it can also have negative consequences that can negatively impact your employment and sometimes your reputation in the community as well.

There are frequently challenges that arise that can complicate utilizing an effective restraining order defense strategy such as a situation where all that you have are the word of the victim against your own word where there are no pictures or witnesses to support your side of the story.

It is in situations like this that proper preparation and defense strategy is extremely important as that can enable you to properly challenge the issuance of a restraining order and in some situations possibly convince the court that one is not necessary.   Due to the serious consequences of a restraining order you are strongly advised to seek an experienced attorney who has knowledge with these types of legal issues.

The first essential element for any defense strategy against a request for a restraining order must be to carefully review and study the law in order to understand the elements required for the particular type of restraining order that is being sought. 

In the State of California for example, there are several different types of restraining orders such as civil harassment, domestic violence restraining orders, restraining orders involving elder abuse, workplace violence, emergency protective orders, and criminal protective orders. 

Proper research of the law regarding the particular type of restraining order that is being sought will allow you to determine who has the authority to issue them, the burden of proof required in order to obtain the restraining order, the duration of the restraining order, and most important of all, what elements are required in order to obtain them.

The second essential element for any restraining order defense strategy is to carefully review the allegations made in order to determine if those allegations do or not apply to each element required for the particular order of protection being requested.

One example that is fairly common would be the issuance of a temporary restraining order in California based on an allegation of domestic violence in that case the burden of proof is extremely low, a reasonableness of abuse or possible abuse will be enough.

I want to point out that even meeting that lower burden of proof only entitles the requesting party to a restraining order that lasts only until an evidentiary hearing can be held to determine if a longer protective order such as a permanent order should be issued.

In order to obtain a domestic violence restraining order in California with a longer duration will require a higher burden of proof known as a finding of a preponderance of the evidence. A preponderance of the evidence means that the party that has the most evidence supporting their position will prevail. Many judges would agree that where it can be shown “it is more likely than not” that the elements necessitating a restraining order are met, that a restraining order must be issued by law.

In order to obtain any long-term restraining order in California based on domestic violence the protected party will need to show both a relationship and abuse.  The elements of abuse for domestic violence are detailed in California Family Law Code § 6300 et seq.

The third essential element for any restraining order defense strategy is for the defending party or their attorney to persuade the court that the allegations asserted by the other party do not fit the definition of abuse.

In some cases a declaration will be filed by the protected party that is exaggerated or consists mostly of vague generalizations with no specific facts provided.  In these situations a good argument can be made that the other party has failed to provide any specific details of circumstances and is therefore not credible because of the lack of details.

For instance if the declaration alleges that the petitioner has been harassed numerous times a defense strategy would be to request that the petitioner identify each and every instance of harassment and whether the communication was not proper meaning a communication that served no legitimate interest.  The burden of proof is on the petitioner requesting the restraining order to prove each and every element required under the law. The duty of the defending party is to attack the credibility of the petitioner.

If you do not have the money for an attorney but still want to file a response so that you can give your side of the story to the Court you can download Judicial Council Form DV120-Response to Request for Domestic Violence Restraining Order by clicking the link below.

http://www.courts.ca.gov/documents/dv120.pdf

Sample opposition to request for domestic violence restraining order in California for sale.

Attorneys or parties who would like to view a portion of a sample points and authorities in support of a response to a request for a domestic violence restraining order in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration can see below.

Sample Opposition to Request for Domestic Violence Restraining Order in California by Stan Burman on Scribd

 

Over 300 sample legal documents for California and Federal litigation for sale.

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The author of this blog post, Stan Burman, is a retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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