Opposing a domestic violence restraining order in California is the topic of this blog post.
Opposing a domestic violence restraining order in California is extremely important as the length of a permanent domestic violence restraining order in California is generally three (3) years and in some cases even longer. The serious consequences that can result from having a domestic violence restraining order entered against you include the fact that any person that violates a restraining order, or even is alleged to have violated a restraining order is subject to arrest.
The negative consequences that result from having a restraining order entered against you include limiting or even temporarily eliminating your rights under the Second Amendment to the United States Constitution to own or possess any guns, firearms or even ammunition. It can also negatively impact your employment and sometimes your reputation in the community as well.
Opposing a domestic violence restraining order in California can be difficult if all that you have is the word of the victim against your own word where there are no pictures or witnesses to support your side of the story. Proper preparation can enable you to properly challenge the issuance of a restraining order and possibly convince the court that one is not necessary. Because of the various serious consequences of a restraining order you should consult an experienced attorney who has knowledge with these types of legal issues if you can afford it.
The first essential preparation for any defense will be to study the law in order to understand the elements required for the particular type of restraining order that is being sought. For instance, in the State of California 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. Researching 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 preparation for an effective defense is to carefully review the allegations made in order to determine if those allegations do or do not apply to each element required for the particular order of protection being requested.
One common example 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 very low; a reasonableness of abuse or possible abuse will be enough.
This burden of proof will entitle the protected party to a temporary restraining order that will last 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 restraining order with a longer duration requires 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 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 preparation for an effective defense 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. Frequently, individuals who are not prepared properly for this type of hearing almost immediately make damaging admissions that necessitate a restraining order be issued, even if the admitted activity was in fact innocent.
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.
Sample legal template for opposing a 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 opposing 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 sold by the author can see below.
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 an entrepreneur and 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. He believes in Father’s Rights as he has seen first-hand the incredible bias against fathers in the family law courts in California. He is currently working on creating digital products that will assist fathers both in California and throughout the United States to represent themselves without an attorney in Court regarding custody and support issues.
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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.