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Restraining order defense in California

Restraining order defense in California is the topic of this blog post.   The preparation and presentation of an effective defense against any request for a restraining order is very important, as having a restraining order entered against you can have very serious consequences that can negatively impact your life for years to come. For example permanent restraining orders typically last 3 years and in some cases even longer, and anyone who violates a restraining order, or even is alleged to have violated a restraining order are subject to arrest.

If a restraining order is entered against you that can limit or even temporarily eliminate your rights under the Second Amendment to the United States Constitution to own or possesses any guns, firearms or even ammunition and it can also negatively impact your employment and sometimes your reputation in the community as well.

Effective restraining order defense can be difficult if all that you have is the word of the victim against your own word in situations where there are no pictures or witnesses to support your side of the story. Proper preparation can enable someone to properly challenge the issuance of a restraining order and possibly convince the court that one is not necessary. Because of the various serious consequences of a restraining order, parties are advised to seek an experienced attorney who has knowledge with these types of legal issues.

The first and most essential preparation for any restraining order defense will be to study the law in order to understand the elements required for the particular type of restraining order that is being sought. For instance, in the State of California there are several different types of restraining orders such as civil harassment, domestic violence restraining orders, restraining orders involving elder abuse, workplace violence, emergency protective orders, and criminal protective orders. Researching the law regarding the particular type of restraining order that is being sought will allow you to determine who has the authority to issue them, the burden of proof required in order to obtain the restraining order, the duration of the restraining order, and most important of all, what elements are required in order to obtain them.

The second essential preparation for an effective defense is to carefully review the allegations made in order to determine if those allegations do or do not apply to each element required for the particular order of protection being requested.

One very common example would be the issuance of a temporary restraining order in California based on an allegation of domestic violence. In that case the burden of proof is very low; a reasonableness of abuse or possible abuse will be enough.

This burden of proof will entitle the protected party to a temporary restraining order that will last only until an evidentiary hearing can be held to determine if a longer protective order such as a permanent order should be issued. In order to obtain any order with a longer duration will require the requesting party to meet a higher burden of proof known as a finding of a preponderance of the evidence. A preponderance of the evidence means that the party that has the most evidence supporting their position will prevail. Many judges would agree that where it can be shown “it is more likely than not” that the elements necessitating a restraining order are met, that a restraining order must be issued by law.

In order to obtain any long-term restraining order based on domestic violence the protected party will need to show both a relationship and abuse. The elements of abuse for domestic violence are detailed in California Family Law Code § 6300 et seq.

The third essential preparation for an effective defense is for the defending party or their attorney to persuade the court that the allegations asserted by the other party do not fit the definition of abuse. Frequently, individuals who are not prepared properly for this type of hearing almost immediately make damaging admissions that necessitate a restraining order be issued, even if the admitted activity was in fact innocent.

In some cases a declaration will be filed by the protected party that is exaggerated or consists mostly of vague generalizations with no specific facts provided. In these situations a good argument can be made that the other party has failed to provide any specific details of circumstances and is therefore not credible because of the lack of details. For instance if the declaration alleges that the petitioner has been harassed numerous times a defense strategy would be to request that the petitioner identify each and every instance of harassment and whether the communication was not proper meaning a communication that served no legitimate interest. The burden of proof is on the petitioner requesting the restraining order to prove each and every element required under the law. The duty of the defending party is to attack the credibility of the petitioner.

Parties involved in restraining order proceedings in California who wish to consult or retain the services of a competent, aggressive and experienced attorney can visit the website of attorney Nathan Mubasher by clicking the link shown below. Mention this blog post and receive a FREE consultation and exclusive discount.

http://www.mubasherlaw.com/

Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

http://www.scribd.com/LegalDocsPro/documents

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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