What Proof Is Needed for a Restraining Order in San Jose, CA?
July 4, 2024 | Ahmed & Sukaram, DUI and Criminal Defense Attorneys
Courts issue restraining orders to protect victims when someone harms or threatens them. Restraining orders prohibit an alleged offender from engaging in any of the following activities against a specific person:
- Stalking
- Threatening
- Assault, battery, and abuse
- Intimidation
- Domestic violence
- Harassment
- Sexual assault and abuse
These are just examples of the types of behavior that may be prohibited. The person asking for a restraining order is the petitioner/protected person. The alleged offender is the respondent/restrained person. The type of case and other factors determine the evidence needed to obtain a restraining order in San Jose, CA.
Evidence Needed To Obtain a Temporary Restraining Order in San Jose, CA
Most adults can petition a court for a temporary restraining order, known as a TRO. A petition for a temporary restraining order can be considered the same day it is filed.
The petition for a TRO contains declarations under penalty of perjury describing the harassment, abuse, or other conduct the respondent committed. Generally, TROs require very little evidence to obtain. The court usually requires a description of the physical, emotional, or other type of abuse committed by the respondent.
Courts must balance the need for a temporary restraining order to protect the petitioner against the intrusion upon the rights of the respondent. The court only requires reasonable proof that a temporary restraining order is needed to protect the petitioner.
Reasonable proof is a very low burden of proof to meet. The reason is that the court must act quickly to protect the petitioner from harm. Also, the TRO is only in effect until a full hearing can be held on the petition. As a result, a statement from the petitioner under oath with sufficient details about abuse or the threat of harm is often sufficient to obtain a temporary restraining order in San Jose, CA.
What Evidence Is Required To Obtain a Permanent Restraining Order in San Jose, CA?
Courts may issue domestic violence restraining orders and civil restraining orders. The level of proof required for a permanent restraining order depends on which type of restraining order you seek.
Domestic Restraining Orders
Judges consider several types of evidence to determine whether to grant a domestic restraining order. The parties may testify in court and submit written declarations. The judge may consider a criminal history of the same or related conduct.
For a domestic violence restraining order, the petitioner must prove by a preponderance of the evidence that they need protection from the respondent. That means the judge believes there is a greater than 51% chance that the respondent engaged in the conduct the petitioner alleges happened and needs to be restrained from further conduct.
Domestic violence restraining orders are for cases involving parties who have specific relationships, such as spouses, the parties who are dating, individuals who share a child, or the parties living in the same household.
Civil Restraining Orders
Civil restraining orders are issued when the parties do not share a relationship that qualifies for a domestic violence restraining order. These orders may apply if the parties are coworkers, neighbors, friends, or strangers.
However, because the parties are not engaged in a domestic relationship, the level of proof for a civil restraining order is higher. The petitioner must prove their case by clear and convincing evidence. This burden of proof requires the judge to find it was highly and substantially more likely that the respondent engaged in the alleged conduct than not.
The court also requires more proof of the conduct than the petitioner’s declarations. Evidence for a civil restraining order may include copies of texts and e-mails, photographs, and other physical evidence. The petitioner must state specific acts of harassment, abuse, or threats of harm to obtain a civil restraining order.
What Should I Do if Someone Files for a Restraining Order in San Jose, CA?
Because the level of proof needed to obtain a temporary restraining order is so low, you may not prevent a person from obtaining a temporary restraining order. However, the TRO is only in effect until the full hearing on the petitioner’s request.
An experienced San Jose criminal defense lawyer can help you prepare a defense to the allegations for the full hearing. Your attorney may call witnesses and present physical evidence to refute the allegations by the petitioner.
The sooner you contact a San Jose restraining order attorney, the better. It improves your chances of successfully fighting a restraining order if you have a skilled attorney handling your case.
If you have questions about a restraining order or need help with a criminal case, call an experienced criminal defense attorney for a free consultation.
Contact our Criminal Defense Law Firm of Ahmed & Sukaram, DUI and Criminal Defense Attorneys Today For Help
For more information please contact our criminal defense law firm of Ahmed & Sukaram, DUI and Criminal Defense Attorneys at the nearest location for a free consultation.
Ahmed & Sukaram, DUI and Criminal Defense Attorneys – San Jose Office
1625 The Alameda, Suite 405, San Jose, CA 95126
(408) 217-8818
Ahmed & Sukaram, DUI and Criminal Defense Attorneys – Redwood City Office
600 Allerton St Suite 201G, Redwood City, CA 94063
(650) 299-0500