In Los Angeles and many courts in California, temporary restraining order requests are handled the same day they are filed. 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 review the petitioner’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, even family pets. 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 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. Since temporary restraining orders require such little evidence, you typically cannot prevent one from being filed against you. However, you can prevent the restraining order from becoming permanent.

What is the burden of proof needed for a domestic violence restraining order: A temporary restraining order expires on the day set for the permanent restraining order hearing.  The “preponderance of evidence” 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. 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, then the restraining order is a civil one, not domestic violence.

What is the burden of proof in a civil restraining order case? This type of restraining order covers those individuals who do not have a qualifying relationship for a domestic violence order, like neighbors, co-workers, business partners or even 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 physical evidence in addition to their own written statements and testimony in court. Evidence such as photographs, text messages, police reports or medical records. 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 and history 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 compelling factor for the judge. However, third-party witnesses are often difficult to get into court without issuing a subpoena for their appearance.

How about domestic violence restraining order renewals? A restraining order can last up to five years, however upon the expiration of the order the protected party can file a request for a Domestic Violence Restraining Order Renewals (DVTRO) up to three months before the expiration of the order.  The judge will consider their request and has the authority to grant a permanent restraining order which would be in existence until further court order.   DVTRO could remain in place for the restrained party’s entire life.

California Family Code § 6345 states “In the discretion of the court, the orders may be renewed upon the request of the party, either for five years or permanently, without a further showing of abuse since the issuance of the order.  If the restrained party does contest the renewal, the protected party is not entitled to a renewal merely due to desire. Family Code § 6345 does not provide the trial court shall automatically renew the existing protective order, it only states the court may do so in the proper discretion of the court.   In exercising its discretion, the court must inquire beyond only the petition party’s subjective desire to have the protective order extended.  Just because a judge found sufficient grounds to grant a protective order three years earlier does not necessarily mean sufficient grounds remain. 

What Does the Court Examine When Determining Renewal? In a 2004 California Court of Appeals case Ritchie v Konrad (2004) 115 Cal.App.4th 1275, the court laid out the factors the court considers when determining whether or not to renew a DVTRO.  Here are the factors:

  1. A trial court should renew the domestic violence prevention restraining order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains, a reasonable apprehensionof future abuse.
  1. The existence of the order itself often will be less telling than the facts supporting its issuance. The trial judge ordinarily should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire.
  2. It is relevant to the court to examine any significant changes in the circumstances surrounding the initial protective order as it may be that the opportunity and likelihood of future abuse has diminished to the degree that they no longer support a renewal of the order.
  3. If the abuse is not physical, it is also relevant to consider the burdens the protective order imposes on the restrained party.

The burden of proof is on the protected party to prove to the court by a preponderance of the evidence that there is a reasonable apprehension of future abuse. It should be noted that the burden is very low.   The protected party must demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.

If the protected party can meet their burden of proof, the restrained party will have to show there is no reasonable apprehension.  This is done by demonstrating the factors the court can consider do not prove a reasonable apprehension.  For example, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?

Restraining orders are always challenging and knowing what you need to prove or disprove requires detailed analysis of the evidence and the ability to present it to the court. Any questions, call my office at 310-601-7144 or email me at [email protected].

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CategoryLegal Advice