Basic California restraining order
defense strategy is the topic of this blog post. Utilizing an effective restraining order
defense strategy is extremely important due to the fact that having a
restraining order entered against you can have very serious consequences that
can negatively impact your life, both in the present and in the future. For instance
many permanent restraining orders have a typical duration of 3 years and in
some cases even longer, and if anyone violates a restraining order, or even are
alleged to have violated a restraining order, they are subject to arrest.
Another negative impact of 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. It can also negatively impact
your employment and sometimes your reputation in the community as well.
There can be challenges involved in
utilizing an effective restraining order defense strategy if all that
you have are the word of the victim against your own word in situations where there
are no pictures or witnesses to support your side of the story. The importance of proper preparation is
important as that can enable someone to properly challenge the issuance of a
restraining order and in appropriate situations possibly convince the court
that one is not necessary. Due to the serious consequences of a
restraining order parties are advised to seek an experienced attorney who has
knowledge with these types of legal issues.
The first essential element for any restraining order defense
strategy should 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 very low a reasonableness of abuse
or possible abuse will be enough. Meeting
that lower burden of proof however will entitle the requesting party to a 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 an order 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 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.
Law Offices of Nathan Mubasher
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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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