Restraining Order in California
Restraining Order in California
This article speaks to restraining orders that are filed with FAMILY LAW COURTS in California, and not the Civil Courts or Criminal Courts. Often it is not easy to deal with emotional trauma that results from threatened or actual actions of someone else who could be a loved one or a complete stranger. Not only do you have to figure out how to move on with your daily life (professional life, domestic life, social life), but now you also have to figure out how to deal with keeping someone away from you so that when you call the police, at least you have the law on your side to do so, and not just your word against his.
Filing a Restraining Order in California: What you need
Restraining orders provide you with the protection that you need by law to keep someone away from harming you emotionally, physically, or even financially. It is also sometimes referred to as a "protective order".
In California, the petitioner (person who files the request) has the burden of proof to demonstrate (prove) to the Court that a restraining order is necessary to protect yourself. You must file paperwork with the Court in which you state what the circumstances are (were) that led you to request a restraining order. You must provide a detailed description of the event(s) which caused you to feel the threat or suffer actual harm.Courts generally, when reading the petition on its face, either grant you a temporary restraining order, or deny it. But either way, the Courts will set a hearing date in the very near future to give you (the requesting party) an opportunity to present his/her case about why the restraining order should be made permanent.
Example of a Restraining Order Most Likely To Get Granted
An example of a restraining order petition in which the Courts will most likely grant the temporary restraining order is:
John and Tina have filed for divorce. They do not live together. However, they have children together, and John picks up the children every morning from Tina because that is what they agreed to during their custody/visitation hearing. Tina now lives with her sister sharing a house.
One morning, Tina is showing and John rings the bell. The kids open the door, and John tells them to go wait in the car. He then comes insides, and go to the bathroom and tries to force himself on Tina. Tina shouts, her sisters hears her scream, and speaks out loud (shouts) but does not come into Tina's side of the house. John hears her, and runs out of the bathroom. Tina files for restraining order, describing in detail what happened, citing her sister as a material witness.
In this case, the Courts will most likely grant Tina an "immediate" temporary restraining order just by reading the petition, and nothing more. However, keep in mind that the Courts will set a hearing date about 20 days (could be more or less) into the future to give the parties an opportunity to defend their allegations.
Example of a Restraining Order Petition Likely to be Denied
An example of a restraining order which is likely to be denied is:
John and Tina are married for 7 years and have children together. Tina just gave birth to a new child. John files for divorce, and also files for a restraining order against Tina, stating that she is angry and emotional and going through "postpartum depression" which is harmful to the children and not in their best interest.
John cites one incident where allegedly Tina threw things at him while holding the newborn in her arms. There are no witnesses, or police reports, or medical reports of any injuries from that incident.
Although, John may get a "temporary" restraining order, during the final hearing which will be held regardless of whether a temporary restraining order gets granted or denied, Tina could effectively argue that John has not provided any credible evidence that supports his allegations other than his words, and that even if such incident did occur, that is was a one-time isolated event that does not speak to Tina's propensity for violence or anger.
Burden of Proof
The party who files (requests) the restraining order has the burden of proof (responsibility to prove) to the Court that the restraining order is justified.
It is always necessary that in order to win a restraining order case, the petitioner must provide some kind of a tangible evidence other than his or her words to prove the case. Police reports, medical reports, witness testimony, videos, text messages or emails are always helpful.
However, at the end of the day, the Court (Judge) has the right to grant or reject the request for a restraining order based on the strength of the evidence(s). In other words, the Petitioner has to prove his or her case by a "preponderance of the evidence". It simply means that something is more likely to be true than not, which is more relaxed than if compared to criminal burden of proof of "beyond a reasonable doubt".
It is always advised to contact an attorney to determine whether you can file a restraining order or not. In certain instances you may not; for example, if Tina threatened John on the phone that she will beat him--there is no imminent threat of harm (certainly no actual physical harm). So, contact a lawyer in your city to obtain an evaluation of your case and the likelihood of success or failure of such request.
This article is NOT COMPREHENSIVE. It contains only very basic information to provide "some" guidance to those who wish to learn about divorce and child custody laws in California. This article is intended for informational purposes only. No attorney-client relationship nor any obligation to render advice or representation is created by the author of this article. Should you have any questions or concerns, please contact our office here
No comments yet.