In California, a restraining order is a legal order issued by a court that requires one person to stop harming or harassing another
person. The person who is harmed or harassed is called the “protected person.” The person who is ordered to stop harming or harassing the protected person is called the “restrained person.”
Restraining orders in California also do not last forever. They can be temporary or permanent. A temporary restraining order (TRO) is a temporary order that lasts for up to 20 days. A permanent restraining order (PRO) is a more lasting order that can last for up to five years, or even longer in some cases. In almost every case, a TRO precedes a PRO as a matter of procedure in the courts.
If you are the victim of domestic violence, stalking, or harassment, you can ask the court for a restraining order. You can also ask the court for a restraining order on behalf of your child if you are the child’s parent or guardian.
The most important issue for petitioners in California restraining order cases is to show that they are in danger of being harmed or harassed by the restrained person. The petitioner must also show that a restraining order is necessary to protect the petitioner from the restrained person.
The most important issue for respondents in California restraining order cases is to show that the petitioner does not have a valid reason to be afraid of the respondent. The respondent may also argue that the restraining order is not necessary to protect the petitioner.
There are two types of “restraining orders” in California: Civil Harassment and Domestic Violence restraining orders.
A civil harassment restraining order is a court order that is issued in order to protect someone from being harassed by another person.
On the other hand, a domestic violence restraining order is a court order that is issued in order to protect someone from being abused by another person.
To understand both, it helps to clarify what “harassment” is under the law.
“Harassment” Defined
In California, harassment is defined as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.”
Some specific examples of harassment as defined by California law include making repeated phone calls or sending repeated text messages with the intent to annoy or threaten someone, making threats of violence against someone, or engaging in a course of conduct (such as stalking) that is intended to scare or terrorize someone.
Notable California Restraining Order Cases
The most notable cases in California that govern civil harassment and domestic violence restraining orders are the following: what was the courts holding in People v. Williams (2001) 26 C4th 819? what was the courts holding in In re Marriage of Holder (1995) 33 CA4th 831? what was the courts holding in In re Marriage of Finkelstein (2008) 168 CA4th 1068? Each of these cases set precedent for how civil harassment and domestic violence restraining orders are to be handled in the state of California.
Domestic violence restraining orders
A domestic violence restraining order is a legal order issued by a court that requires one person to stop harming another. The order can include many different types of protection, such as staying away from the victim‘s home, workplace, or school, not contacting the victim by phone, email, or social media, and not coming within a certain distance of the victim.
Most prevalent types of domestic violence restraining orders
There is no definitive answer to this question as the most prevalent types of domestic violence vary depending on the specific situation and location. However, some of the most common types of domestic violence in California restraining orders include physical abuse, sexual abuse, emotional abuse, and economic abuse.
Evidentiary standard for DVPA Restraining Orders
The standard of proof to obtain a domestic violence restraining order varies by state, but is typically a lower standard than that required for a criminal conviction. In California, for example, the standard of proof required to obtain a domestic violence restraining order is “preponderance of the evidence.”
This means that the petitioner must show that it is more likely than not that domestic violence has occurred.
“Preponderance of the evidence“ means that the petitioner must show that it is more likely than not that domestic violence has occurred. This is a lower standard than that required for a criminal conviction, which means that the petitioner does not have to prove beyond a reasonable doubt that domestic violence occurred.
Challenges in DVPA Restraining Orders
The biggest challenges for petitioners in domestic violence restraining orders in California are the high burden of proof and the lack of clarity in the law.
On the other hand, there are many challenges that respondents face when they are served with a domestic violence restraining order in California. The most common challenge is finding an attorney who is familiar with the law and can help them navigate the process.
Other challenges include:
• Facing false accusations: Many respondents are served with restraining orders based on false accusations.
• Losing their job: A respondent may lose their job if their employer finds out about the restraining order.
• Losing their home: A respondent may be forced to move out of their home if the restraining order includes a stay away order.
• Having their name listed on the public restraining order registry: This can make it difficult to find housing or a job.
• Being separated from their children: A respondent may be prevented from seeing their children if the restraining order includes a child custody order.
Civil harassment restraining orders
A civil harassment restraining order is a court order that protects you from someone who is harassing, stalking, or threatening you.
The order can require the person to stay away from you, your home, your work, or your school.
The order can also require the person to stop contacting you or communicating with you in any way.
A civil harassment restraining order is different from a domestic violence restraining order, which is issued in cases of abuse between family members or intimate partners.
Most prevalent types of Civil Harassment Petitions
There is no definitive answer to this question as it can vary depending on the particular circumstances of each case. However, some of the most common types of harassment claims made in civil restraining orders in California include:
• Physical harassment, such as assault or battery
• Verbal harassment, such as name–calling, threats, or stalking
• Emotional abuse, such as intimidation or manipulation
• Economic abuse, such as controlling finances or preventing someone from working
• Sexual harassment or assault
• Cyberstalking or online harassment
Evidentiary standard
The evidentiary standard in civil harassment restraining orders in California is “clear and convincing evidence.”
In order to obtain a civil harassment restraining order in California, the petitioner must prove by clear and convincing evidence that the respondent has engaged in harassing behavior that is not protected by the first amendment, and that the petitioner is in reasonable fear of bodily injury or death.
Challenges in Civil Harassment Restraining Orders
Some of the challenges petitioners face in civil harassment restraining orders in California include:
• The high burden of proof required to obtain a restraining order. In order to obtain a civil harassment restraining order in California, the petitioner must prove that he or she has suffered harassment from the respondent and that the harassment is serious enough to warrant the protection of a restraining order. This can be difficult to do, especially if the petitioner does not have any witnesses or evidence to support his or her claim.
• The cost of filing a civil harassment restraining order. In California, the petitioner must pay a filing fee to the court in order to have his or her restraining order request processed. This fee can be a significant barrier for many people who are already struggling to make ends meet.
• The time it takes to obtain a civil harassment restraining order. Once the petitioner has filed the necessary paperwork with the court, it can take several weeks or even months for the court to issue a final restraining order. This can be a significant amount of time for the petitioner to wait while still being harassed by the respondent.
• The possibility of retaliation from the respondent. One of the biggest concerns for many people who obtain civil harassment restraining orders is the possibility that the respondent will retaliate against them for doing so. This can include anything from physical violence to verbal harassment.
Some of the challenges respondents face in civil harassment restraining orders in California include:
The burden of proof is on the respondent to show that the plaintiff is not credible;
The respondent must show that the plaintiff‘s allegations are not true;
The respondent must show that the plaintiff does not have a valid reason for seeking the restraining order; and
The respondent may have to pay the plaintiff‘s attorney‘s fees if the restraining order is granted.
Restraining Orders and Criminal Records
People often forget that like criminal records, a restraining order is also a record that is discoverable by the public. Therefore, for those faced with challenging either a civil harassment or a domestic violence restraining order that is based on false testimony or fabricated circumstances–the urgency in protecting one’s character becomes that much greater. Having experienced counsel by your side becomes crucial and highly recommended.
