Defending Against A Restraining Order

Having a restraining order placed on you can bring serious consequences. It can affect your second amendment rights to carry a gun and it can definitely impact your employment and sometimes your reputation in the community.  

It can be very difficult to defend against a restraining order when all you have is the word of the victim against yours and there are no pictures or witnesses to support you. However, if you are prepared you should be able to properly challenge the issuance of a restraining order and possibly convince the court that one is not necessary.  Because a restraining order can bring serious consequences it is advised that you seek an experienced attorney who has knowledge with these types of legal issues.

1) In order to begin a proper defense, it is advised that you study the law and understand the elements required for that particular restraining order. For example, California has different types of restraining orders (civil harassment, domestic violence restraining order, restraining orders involving elder abuse, workplace violence, emergency protective orders, and criminal protective orders). Depending on the type of restraining order, you will discover who has the authority to issue them, what the burden of proof is, the duration, and what elements are required in order to obtain them.

2) You need to review the allegations made against you very carefully and determine whether they do or not apply to each element required for that particular order of protection.

For example, A temporary order in California for an allegation of domestic violence, the burden of proof is very low, a reasonableness of abuse or possible abuse. This only gives the protected party a temporary order until an evidentiary hearing is held  to determine if a longer (permanent) protective order can be given. For the longer order, the burden of proof is higher, a finding of a preponderance of the evidence is required.  A preponderance means who has the most evidence supporting their position which tips the scale to their favor.

Continuing on with our example, to obtain a long-term domestic violence restraining order the  protected party will need to show 1) relationship and 2)  abuse.