Responding to a Domestic Violence Restraining Order

Responding to a Domestic Violence Restraining Order for the person who is being restrained: Run not walk to the nearest most qualified and aggressive DVRO specialist attorney who is super experienced at DVROs. Many times a family law attorney will not be adequate to nullify or deflect a restraining order particularly one which was put together by an attorney practiced in criminal law. In some cases, criminal prosecution attorneys, for example ex-associate or ex-deputy District Attorneys may be involved in presenting the case to the judge evaluating a TRO and will likely be very successful in getting a DVRO issued. See DVRO.

Some thoughts:

It is important to note that even with an amazing attorney, winning against a temporary restraining order (TRO) in family court is not a guaranteed outcome, as the decision ultimately depends on the specific circumstances of the case and the evidence presented. And the bar is low.

Here are some steps that may increase your chances of success when responding to a Domestic Violence Restraining Order :

1. Hire the best attorney you possibly can: This attorney should be an expert in restraining orders or a family law attorney who has handled many Temporary Restraining Orders (TROs) and won DVROs.  If there is anything you should put money into at the start of a high conflict divorce case, this is it !  Even if you can barely afford it, consider hiring an experienced family law/criminal law attorney to represent you when fighting off a DVRO. An experienced lawyer who has defended against DVROs can advise you how to handle responding to your specific allegations and help you navigate the court system.
2. Understand the allegations: The first step in fighting a TRO is to understand the allegations against you. Make sure to read the TRO carefully and understand what actions you are accused of and what evidence has been presented against you. Can you find the holes in the allegations and proof presented in the complaint?
3. Gather evidence: In order to defend against a TRO, you will need to gather evidence that contradicts the allegations made against you. This could include witness testimony, text messages, emails, social media posts, or other evidence that supports your position. The more evidence you can gather, the better.
4. Prepare for the hearing: If a hearing has been scheduled, make sure to prepare thoroughly. This will include drafting a written response to the TRO, preparing witness statements, and practicing your testimony.
5. Be respectful and cooperative and present a respectable demeanor: This is true for all court hearings but especially so for a restraining order hearing. At a TRO or DVRO hearing, the judge is looking very carefully at you and trying to decide if you really did any of the things that you have been accused of. Think of it as a criminal trial but without the fortune of the case for the DVRO having to be ‘without a reasonable doubt’; this is one of those ‘trials’ where you may be seen as guilty even if the quality of the evidence presented is poor or lacking.

According to Judicature, https://judicature.duke.edu/articles/legal-standards-by-the-numbers/

• The American legal system depends on standards regarding the burden of proof to facilitate outcomes that accurately balance society’s interests with an assessment of risk. Judges and juries use these standards to make decisions such as granting bail, assessing the validity of stops or arrests by the police, issuing arrest and search warrants, determining guilt in criminal trials and liability in civil trials, adjudicating child custody disputes, and terminating parental rights. These standards are uniformly expressed verbally rather than numerically.
• Judicature outlines the following six standards for burden of proof: 1) reasonable articulable suspicion; 2) probable cause; 3) preponderance of the evidence; 4) substantial probability; 5) clear and convincing evidence; and 6) beyond a reasonable doubt. The standards range from requiring a relatively small amount of evidence to enough evidence to be almost certain.

Proof Needed for a Domestic Violence Restraining Order

A temporary restraining order expires on the day set for a permanent restraining order hearing. During this hearing, a Judge will listen to testimony from all parties and consider declarations submitted to the Court in writing. The level of proof necessary at this type of hearing is called “Preponderance of Evidence.”

The preponderance standard is used in domestic violence restraining order cases because of the close nature of the relationships involved. A good way to look at this level of proof is a fact alleged is more likely than not to have occurred. Or in the alternative, if the Judge thinks that an alleged incident is 51% likely to have occurred then this will meet the burden of proof.

Preponderance of evidence does not require more than the truthful testimony of the person seeking the order. If a Judge hears from an individual about past cases of physical or emotional abuse without a good explanation from the other side, a restraining order can be granted.

Source: The Law Office of George Gedulin

But the bar for a DVRO to stick to anyone is really low. The DVRO will get issued with at least a (3) preponderance of evidence; in CA, if the protected party even thinks their life is in danger the judge can, in their discretion uphold the TRO and make it permanent for at least 1 year, after which it is super easy for the protected party to re-up it easily and without any cost.

During the hearing

During the hearing, be respectful and cooperative with the judge and court staff. Follow all court procedures and rules, and present your evidence clearly and logically with your attorney’s help.

Remember that winning against a TRO in family court can be difficult, and it is important to take the allegations seriously and respond in a responsible and thoughtful manner.