A restraining order is a court order designed to protect people, their children, property, or pets from harm, abuse, or threats. People seek restraining orders in response to domestic violence, civil harassment, or credible threats. The strength of the evidence largely influences the outcome of either requesting or defending against protection. Also, the type of restraining order determines the kind and level of proof needed. This article explains what evidence is necessary for every restraining order and how it could affect your case.

An Overview of Legal Proof Standards

When a restraining order is sought, the petitioner must prove their case. They must present enough evidence to persuade the judge that the restraining order is legally warranted. California courts use two main legal proof standards for restraining orders: preponderance of the evidence and clear and convincing evidence. A lower threshold is used for temporary emergency orders.

Reasonable Proof

The petitioner only needs to prove that it is reasonable to believe that abuse or harassment may have happened or could happen. This standard is applied to Temporary Restraining Orders (TROs), which give quick but limited protection.

A Preponderance of the Evidence

For Domestic Violence Restraining Orders (DVROs), the petitioner must show that it is more likely than not that the abuse occurred. Examples of evidence are testimony, messages, or photos.

Clear and Convincing Evidence

Civil Harassment Restraining Orders (CHROs) usually require proof by a preponderance of the evidence, unless the alleged harassment involves constitutionally protected activity; then, the standard becomes clear and convincing evidence. The proof should be clear and detailed, making it evident that the abuse took place. The reason for this is that CHRO cases usually involve less personal relationships.

The more serious and long-lasting an order is, the stronger the proof that is needed. Because of this system, everyone involved is treated fairly and their rights are respected.

Proof Needed to Obtain a Temporary Restraining Order (TRO)

Low Standard: “A Reasonable Amount of Proof”

A TRO gives immediate, short-term help to someone who is threatened with abuse or harassment. California courts may issue a TRO if the petitioner provides facts that support a reasonable apprehension of harm, usually through a sworn declaration. They need to prove it is sensible to think harm has occurred or is likely to occur. At this point, the court needs only enough certainty to move forward swiftly.

Judges issue a TRO based solely on the petitioner’s sworn statement and supporting documents, without a hearing from the respondent, if the court finds that immediate harm could occur. The reason for this is that delaying could put the petitioner in danger. A TRO remains in effect for 20 to 25 days, until a court hearing occurs where both parties can present their case.

Acceptable Evidence for a TRO

The petitioner's written statement is the main proof because TROs are awarded fast and without the respondent present. This declaration is required to:

  • Be Sworn Under Penalty of Perjury: The petitioner must sign a statement under oath that all the details in their petition are accurate.
  • Include Specific and Recent Details: Describe recent, specific incidents; older or vague claims are generally less persuasive. The declaration should describe the dates, times, places, and actions that make protection necessary.
  • List Others Needing Protection: If children or other household members are in danger, the petitioner must describe why they deserve protection under the TRO.

At the TRO stage, the court may issue an order based primarily on the petitioner’s declaration, even if police reports or witness statements are unavailable. For this reason, a clear, precise, and believable statement is necessary. A statement may not even be considered reasonable proof if it is unclear or inconsistent.

Awareness of how TROs work benefits the petitioner and the respondent. Courts usually prioritize protecting individuals. The judge will likely issue the TRO if the petition is fair and shows a possible danger. TROs are generally looked at immediately or the following business day to guarantee swift protection.

A TRO is meant to be temporary and leads to a full hearing, where more proof is needed for a lasting restraining order. The petitioner must meet a higher burden of proof at the subsequent hearing to obtain a permanent restraining order. The respondent’s role at the hearing is to challenge the allegations and present their defense.

What You Need to Show for a Domestic Violence Restraining Order

The Standard used is “Preponderance of the Evidence”

When applying for a long-term DVRO, whether after a TRO or in a non-urgent case, the petitioner must show that the abuse is more likely than not to have happened. The petitioner must prove that domestic violence occurred, meaning it is more likely than not (over 51% probability) that the abuse took place.

A DVRO may last up to five years and can affect areas such as child custody, visitation rights, firearm ownership, and living arrangements, depending on the specifics of the case. Since the results of a domestic violence case can be life-changing and the relationships are personal, California law requires more evidence than for an emergency TRO.

According to the Domestic Violence Prevention Act (DVPA), “abuse” can take many forms. It can affect people in ways other than physical injury. It includes sexual assault, threats, stalking, harassment, property damage, and disturbing the peace through ‘coercive control.’

This may include isolating the person from their support system, controlling finances, monitoring communications, and other forms of psychological manipulation. Evidence that proves psychological or financial abuse can be enough to grant a DVRO.

Common Types of Evidence

When trying to meet the “preponderance of the evidence” standard, petitioners may present many types of evidence. Considering the whole situation, judges can find that several minor pieces of evidence can still lead to a strong case. The most common types of evidence are:

  • Verbal Testimony: Petitioners can speak under oath at the hearing. If the evidence is reliable, it could be all that is needed to meet the burden of proof.
  • Written Declarations: These are official written statements that include detailed reports of abuse, with dates, places, and exact incidents. They must be detailed and easy to follow.
  • Photographs: Pictures of the damage to property or injuries, with timestamps, are often compelling.
  • Electronic Communications: Texts, emails, messages on social networks, or call logs that reveal threats, controlling actions, or harassment are helpful. They should be printed out and put in order for the court.
  • Police Reports and Medical Records: They provide proof of the incident and the care or help needed.
  • Witness Testimonies: People who have witnessed abuse or its results, such as friends or family, can submit a written statement or testify in court.
  • Criminal Records: A history of violence or abuse in the criminal records can help the petitioner’s case.
  • Journals or Logs: Keeping a journal or log with the dates and details of your abuse can prove your testimony and show a pattern of the abuser’s actions.

Eligible Relationships

A DVRO will be issued only if the petitioner and respondent have a particular relationship as the law requires. When the relationship does not meet the requirements, the petitioner must apply for a Civil Harassment Restraining Order (CHRO). Qualifying relationships are:

  • Spouses or partners who have been registered as domestic partners
  • People who have or had a romantic relationship and share a home
  • Those who are dating or have been dating in the past
  • Co-parents may be married or unmarried and may or may not live together.
  • Some family members, including parents, children, siblings, grandparents, grandchildren, and in-laws

The court verifies that the legal relationship requirement is met before considering evidence of abuse.

How the Respondent Can Defend Themselves

People involved in DVRO cases are allowed to defend themselves. The petitioner must prove there was abuse, and the respondent tries to show that the petitioner did not meet this requirement. Some effective ways to defend are:

  • Providing Counter-Evidence: This includes things like alibis, friendly messages, or statements from witnesses that go against the petitioner’s claims.
  • The respondent may point out inconsistencies or past false allegations made by the petitioner to question whether their accusations are true.
  • If the respondent was defending themselves or both parties were involved in a fight, this can be used as a defense.

An attorney can guide you through the court process, present your case, question witnesses, and make sure your side is given a fair chance.

Respondents are not required to show they are not guilty as a criminal defendant would be. Their objective is to raise sufficient doubt such that the petitioner fails to meet the preponderance of the evidence standard. A DVRO should not be given if the petitioner does not meet this standard.

What You Need to Prove for a Civil Harassment Restraining Order

The required evidence is referred to as ‘clear and convincing evidence. A CHRO is used when protection is needed from individuals who do not share a close personal or domestic relationship, such as:

  • Neighbors
  • Coworkers
  • Acquaintances
  • Business associates
  • Landlords

The petitioner must prove their case for a CHRO by a standard of clear and convincing evidence, which is much tougher than for a DVRO. As a result, the evidence needs to be solid, detailed, and convincing so the judge is sure harassment took place.

In many cases, CHROs are based on a pattern of behavior over some time, even if it is brief, to determine if harassment was intended. One act of violence can be enough, but usually, you need multiple acts without violence to prove harassment.

Evidence for CHRO Petitions

To meet the clear and convincing standard required for CHROs, petitioners must submit robust, well-supported evidence that clearly demonstrates harassment. A CHRO is not usually given out just because someone is accused. Examples of evidence are:

  • Multiple Documented Incidents: Prove a pattern of harassment by including dates, details, and what happened.
  • Neutral Third-Party Witnesses: The testimony of people who saw events unfold and have no personal interest is very useful.
  • Physical Evidence of Abuse: Physical evidence may include photographs, messages, emails, voicemails, videos, or social media posts that show harassment or threats.

Present evidence of threats or harmful acts that would cause substantial emotional distress to a reasonable person and lack any legitimate purpose.

The law also considers a reasonable person’s reaction to the behavior, not just the petitioner’s opinion. The law requires that the conduct cause substantial emotional distress to a reasonable person and serve no legitimate purpose.

Tips for the Petitioner

Because the evidence must be strong, it is vital to prepare well. Petitioners should:

  • Record all details: Record every incident, including the date, time, what happened, and who saw it. This demonstrates a regular pattern.
  • Be sure to keep all your texts, emails, voicemails, and photos safe. Do not delay; digital information can be easily lost or deleted.
  • Petitioners may use Judicial Council forms SUBP-001 (for personal appearance) or SUBP-002 (for production of documents) to subpoena witnesses, but they must strictly follow service rules and court deadlines.
  • For a court hearing, arrange your case, have three copies of every document, and concentrate on facts, not your feelings. Prepare a straightforward, factual narrative explaining what occurred and how it meets the legal definition of harassment.

Doing these things allows petitioners to present their case well and satisfy the high standard set for CHROs.

Tips for Respondents Facing a Restraining Order

Respondents have the right to defend themselves. Know the order type, gather counter-evidence, and highlight inconsistencies. Stay calm in court, present organized documentation, and consider hiring a lawyer. Raise valid defenses like self-defense or false claims. Always obey the restraining order to avoid legal trouble, even if you disagree.

  • Understand the Type of Order Against You
  • Gather Counter-Evidence
  • Identify Inconsistencies
  • Raise Affirmative Defenses
  • Prepare to Testify Clearly and Calmly
  • Bring Documentation
  • Consider Legal Representation
  • Respect the Court Order in the Meantime

Find a Skilled Restraining Order Attorney Near Me

To succeed in a restraining order case in California, you should know the type of order, whether a TRO, DVRO, or CHRO, and meet the necessary legal requirements. Your case must be built on solid and reliable evidence. To defend yourself, you must understand the evidence against you and how to counterattack it.

Since gathering or fighting evidence is complex and the outcomes can have a significant impact, take prompt legal action and have legal guidance. At Goldman Flores Restraining Order Law Firm, we are ready to help. Call us at 213-341-4087 to consult with our restraining order attorneys.