A restraining order (RO) is an excellent legal tool that safeguards a protected person from harassment, physical abuse, stalking, or threats or violence from the restrained party. However, in particular situations, a restraining order might be inappropriate and can turn the world of the restrained party upside down, damaging their reputation and freedom. When there is solid evidence against a restrained party, contesting an RO can be challenging.
However, if there is no solid evidence to support the RO, you can successfully challenge it. If you are scheduled for a hearing, you need an experienced attorney to help you challenge the RO. An experienced attorney will explain your rights, burden of proof, and the filing process. Here are the steps you should take to fight or contest an RO in California.
Determine the Type of RO Issued Against You
The first step towards challenging an RO is determining the type of protective order issued against you. California has two primary categories of restraining orders contingent on the relationship between you and the protected party. These include:
Domestic Violence Restraining Order (DVRO)
The court issues a DVRO where any type of abuse is directed at an intimate partner or a close family member. You will receive this order if you engage in sexual, physical, economic, psychological, or emotional abuse. Additionally, actions such as destroying property, illegal entry of a home or workplace, or stalking are forms of domestic violence. So, your case will fall under DVRO if you engage in the highlighted unlawful conduct and have any of the following relationships with the victim:
- A current or former romantic partner, spouse, or registered domestic partner
- A cohabitant
- A blood relative
There are several forms of DVRO. The first is the emergency RO that is requested by officers responding to a DV incident. The officer seeks the orders if they reasonably believe the victim is in imminent danger of harm. This means that the court only requires the police officer's statement to issue the orders. Once the emergency order expires, the victim can request a temporary RO by filling out forms and explaining to the court the events that led to the DV incident. The filing party only needs to prove their claims with a preponderance of the evidence, which is an evidentiary standard easy to attain. The victim’s statement alone is sufficient to show the court that it is more likely than not that the DV incident happened.
Civil Harassment Restraining Order (CHRO)
When you engage in an act of physical violence, threats of abuse, or a deliberate series of actions intended to annoy or harass a person you have no close relationship with, such as a neighbor, co-worker, friend, a distant family relative, or roommate, you will receive a CHRO. Before the court issues a permanent CHRO, it requires clear and convincing proof to support the claim. This is a higher evidentiary standard than that of DVROs, meaning that filing parties find it challenging to prove their claims, creating an opportunity for you, the restrained party, to raise doubt in the minds of the court regarding the accusation. If the judge believes the evidence by the victim is not sufficient to justify a CHRO, they will deny the victim’s request.
Typically, when the court issues a temporary RO for DV or civil harassment, the protected party must serve you with the orders and a notice that they seek a permanent protective order against you, so that you can prepare for the hearing to challenge the PRO. In a domestic violence case, you will receive Form DV-109, notifying you of a scheduled court hearing in the family court. For civil harassment, the protected party will serve you with CH-109, informing you of a scheduled civil court proceeding. So, you can identify the type of legal standard that applies to your case by checking the upper-right corner of the form you have been served with. Additionally, the court clerk will indicate the date, time, and location of the permanent restraining order hearing on the forms to ensure that all parties know the hearing date.
Cede your Gun to The Authorities and Comply with Other Court Conditions Upon Receiving a Temporary Restraining Order
When you are served with a TRO, it is crucial to review it comprehensively to understand the terms you must abide by while awaiting the permanent RO hearing. One crucial pre-hearing term you must abide by is the prohibition of a restrained party from purchasing, owning, or possessing a firearm. Possessing or buying a firearm while awaiting a court hearing for a permanent protective order is a contravention of PC 29825.
When you are served with a TRO, you enter a mandatory pre-hearing compliance, where you must abide by all court terms, including ceding your gun to law enforcement. The police have an automated digital portal for alerting law enforcement countrywide on non-compliance. So, if you receive the TRO and fail to relinquish your firearm rights within the set deadline, you risk a search warrant or welfare check, which could lead to an additional charge for a restraining order violation.
The purpose of an RO is to protect the filing individuals. Allowing you, the alleged abuser, to buy or retain your firearm and ammunition threatens the protected party even more. So, the court orders you to sell your firearm to a licensed dealer or surrender it to the authority for safekeeping until the orders lapse.
If you are surrendering the firearm to the local police department, call in advance to notify them that you will be visiting the station to surrender your gun and ammunition. You should cede the gun within 24 hours of service. When you surrender the gun to the authorities or sell it, you should request a signed receipt, which you must file with the relevant court clerk within 48 hours of surrendering the weapon. For CH, you must complete and submit Form CH-800. For DV, the court will require you to file Form DV-800 as proof of compliance with its mandate.
Relinquishing your gun is not the only condition of a TRO. The court imposes several other rules and conditions that you should abide by, contingent on the type of RO in question. One common condition among many ROs is the no-contact order. This prohibits you, the restrained party, from direct or indirect contact with the victim, such as monitoring, sending emails, sending text messages, calling, going within a certain distance near the protected party, social media interaction, or inflicting bodily harm.
In domestic violence cases, the court can issue an emergency or temporary order requiring you to leave the home you share with the victim, even when you own the house or are the leaseholder. Also, you should avoid shared locations, such as the local restaurant or grocery shop. In the event of accidental contact, you must leave immediately to ensure you do not exceed the distance requirement in the RO.
Ensure you read the notice you are served with carefully to understand the rules and conditions. If you do not understand some terms, consult with a seasoned restraining order attorney to understand all the details of the legal standard. You can ask for clarification if there are terms you do not understand. That way, you will avoid a violation that could trigger an arrest or hurt the scheduled court hearing on a permanent RO application.
Fill Out and File the Formal Response Forms
A critical step in fighting a restraining order is submitting a timely response. You must submit a response to the claims by the protected party within 21 to 25 days of service. Typically, the law requires the protected party to serve you with the legible copies of the court’s TRO. Additionally, attached to the copies you are served with are the Forms DV-120 or CH-120 for the temporary restraining order, depending on the RO type. The forms are usually blank, so you can file an answer or response to the allegations made by the protected party, as stated in the copies of the court filings received. The forms serve as a roadmap for you in responding to the accusations.
Start by reviewing copies of the court filings the accuser filed to understand the accusations against you. You should follow the instructions provided on the response form that applies to your case. The response forms are structured in a way that they state the protections an alleged victim is seeking and the reason they seek the protection, and then leave a blank space for you to address the claims and provide reasons and evidence as to why the court should deny the petitioner’s request. When completing the forms, ensure that you do not leave any request made by the petitioner unaddressed, because the court will conclude that you are waiving your right to contest that specific request. Filling out the forms incorrectly can lead to an unfavorable outcome. Enlist the services of an experienced RO attorney to help you fill out the forms correctly to avoid mistakes that could jeopardize your defense.
Additionally, you should attach affidavits or statements detailing your side of the story. The affidavit becomes your written testimony against the protective order. When writing your testimony, you need the guidance of an attorney to ensure that the chronology of events you provide to the court is clear and addresses the allegations made by the protected party. With a seasoned protective order attorney on your side when writing an affidavit, you will avoid mistakes that could cost you the defense, such as:
- Making personal grievances
- Emotional arguments
- Character defamation
With legal guidance, you will have clear, concise, and professional testimony that will simplify the judge's work, as they are already reviewing several testimonies. The more precise and professional your affidavit, the more compelling your side of the story will be to the judge.
Once you complete the forms and write your testimony, the next step will be to file the response within the provided timeline or two to five days before the permanent restraining order hearing. Submitting the response early gives the judge time to evaluate your response. Filing entails delivering the original response forms and two copies to the relevant clerk’s office. In DV cases, you do not pay a filing fee. However, for civil harassment, you must pay a fee unless you request a waiver and the court grants your request. The clerk will stamp the forms and return the copies to you so that you can serve the claimant.
Since you cannot serve the alleged victim in person, you can use a friend or relative who is 18 or older, law enforcement, or a professional server. The law permits service by mail for responses. However, you must complete the DV-250 or CH-250 form, sign it, and present it to the clerk as proof of service by mailing it. If you do not complete and file the forms, the judge will construe that you did not serve the petition and therefore will not consider your written testimony during the protective order hearing.
Gather and Submit Exculpatory Evidence
Most of the evidence you will need to defend yourself in the restraining order hearing is digital. The court will not examine the evidence in this form, so you must make hard copies of the text messages, emails, and social media posts. When making the copies, ensure the petitioner's contact information is visible to prove that the communication was between you two. Arrange the digital evidence in a structured manner, as indicated in the response forms, to poke holes into the claims or prove to the court that the accusations are false.
Showing contact information alone is not enough to authenticate the digital evidence. You must testify under oath how you obtained the documents and confirm that they are authentic.
Bring all the documents, photos, and screenshots of conversations to the court. Ensure that you have three copies of each piece of evidence. One copy is for the judge, one for the petitioner, and one for your defense team.
If there were witnesses present during the incident who can testify in your favor, your attorney should present them with Form MC-030 to make sworn declarations under the perjury penalty. The signed MC-030 forms will be accepted in court even in the absence of the witnesses.
If you require third-party proof, such as video surveillance or GPS coordinates, to prove your location at the time of the alleged incident, you will need to subpoena the parties that hold the evidence. Your attorney should subpoena all parties with evidence that can help your case on time, because evidence obtained after the lapse of the provided timelines will not be admitted in court.
Prepare for and Attend the RO Hearing
The court proceeding on the RO can be held in a physical court or via an online hearing. You are encouraged to have a legal representative in your corner for this proceeding to make strong arguments and increase your chances of a fair verdict.
On the date of the court proceeding, arrive on time, and if possible, an hour early so that you can have sufficient time to find the courtroom and register with the court clerk. That way, you can verify that you are present in court. Additionally, you will have time to present copies of the forms you have filed or are yet to file, along with supporting evidence.
A restraining order hearing is held by a bench, not a jury. A presiding judge listens to the petitioner and the restrained party, examines the evidence, and deliberates on the matter to issue a verdict. The judge’s decision will be informed by the facts of the case, not by emotional tantrums. Your attorney will encourage you to stay calm and avoid any conduct that could lead the court to view you as aggressive or violent. If you are aggressive or disrespectful during the hearing, it could convince the judge that the accusations are true, leading to an unfavorable outcome.
A weapon that your attorney can exploit during the hearing is the cross-examination stage, especially if the allegations are fake. The attorney will put the petitioner on the stand and cross-examine them under oath. Since they cannot lie on the stand, your attorney will have the chance to poke holes in the petitioner’s testimony to show inconsistencies in their story or evidence. By challenging the evidence submitted, you compel the judge to doubt whether the claim meets the evidentiary standard for granting a PRO, leading to the denial of the petitioner’s application.
The judge will be more interested in your character and behavior during the bench trial, and this will significantly influence their verdict. You should show composure and calmness to convince the judge that a permanent protective order is not necessary. If you can restrain yourself in court even when you are expected to be making dramatic pleas, you will portray yourself as someone who does not need restraining, and this will be taken into account during the final verdict.
Find a Seasoned Restraining Order Attorney Near Me
A restraining order comes with severe consequences that can dent your reputation and impede your freedom. Therefore, when you receive a notice for the court hearing, you should act immediately because of the strict deadlines. Hiring an RO attorney is your first step in fighting the legal standard. An attorney will read the court filings, help you prepare a response, gather evidence, and represent you in the hearing for a fair outcome.
At the Goldman Flores Restraining Order Law Firm, we are available to protect your rights and guide you through the process of fighting the RO. Call us today at 213-341-4087 to review the court filings and develop solid defenses in Los Angeles.
