Restraining order defense in California

Restraining order defense in California is the topic of this blog post.

Preparing an effective restraining order defense in California is extremely important.  This is due to the fact that serious consequences can result from having a restraining order entered against you.  These serious consequences can have extremely negative impacts on your life, both in the present and in the future.  For example many permanent restraining orders in California have a typical duration of 3 years and in some cases even longer, and if anyone violates a restraining order, or even are alleged to have violated a restraining order, they are subject to arrest.

Another extremely negative impact of having a restraining order entered against you is that the restraining order 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.

Having a restraining order entered against you can have negative impacts on your employment, and in some cases, your reputation in the community as well.

Typical challenges that arise in preparing an effective restraining order defense in California include situations where all that you have is the word of the victim against your own word as there are no pictures or other percipient witnesses to support your side of the story.

The importance of proper preparation for a restraining order defense is very important as that can enable you to properly challenge the issuance of a restraining order and in appropriate situations possibly convince the court that one is not necessary.   Due to the serious consequences of a restraining order parties are advised to seek an experienced attorney who has knowledge with these types of legal issues as well as experience in restraining order defense.

The first essential element for any restraining order defense is to carefully review and study the relevant statutes to determine the elements required for the particular type of restraining order that is being sought.

In the State of California for example, 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.

Elements of restraining order defense in California.

Proper research of 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 element for any restraining order defense is to carefully review the allegations made in order to determine if those allegations do or not apply to each element required for the particular order of protection being requested.

One example that is fairly common 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 in that a reasonableness of abuse or possible abuse will be enough.  Meeting that lower burden of proof however will entitle the requesting party to a 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 an order with a longer duration will require 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 element for any restraining order 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.

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 an effective 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 attorney for the defending party is to attack the credibility of the petitioner.

An experienced litigation attorney can evaluate your situation and determine the appropriate restraining order defense strategy for your case.   Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

 

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Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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