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What is the Burden of Proof for a Restraining Order in California?


If you have been a victim of domestic violence, which can involve physical, emotional, mental, or financial abuse, California law allows you to use a domestic violence restraining order (DVRO) to protect yourself from further harm. You can get an emergency protective order issued on the spot by a law enforcement officer, but if you want a temporary restraining order or permanent restraining order, you’ll have to convince the court that it is necessary by providing a “preponderance of evidence.” In legal terms, a preponderance of evidence is the lowest burden of proof placed on a plaintiff or claimant, so it is the most easily overcome, but it still requires some type of convincing argument or evidence.

What is a Burden of Proof?

“Burden of proof” means that the party with that burden must prove their argument to win a court case or secure a court order, such as a restraining order. Meanwhile, the other party doesn’t have to prove anything to win; the unburdened party has the right to defend itself but it doesn’t have to prove to the court that what they are saying is true or even that what the other side has said is untrue.

In California, the burden of proof is comprised of three main levels:

  1. Preponderance of evidence: If the plaintiff can show that what they are saying is more than likely true, a preponderance of evidence has been met. Sometimes, it is simplified as saying that 51% of the evidence and arguments presented to the court prove what the plaintiff is saying. To get a restraining order, you will need to provide a preponderance of evidence.
  2. Clear and convincing evidence: If the plaintiff can show that what they are saying is “highly and substantially more likely to be true than untrue,” the burden of proof described as clear and convincing evidence has been met. Oftentimes, clear and convincing evidence is needed to achieve a successful case result in civil or family law cases.
  3. Beyond a reasonable doubt: If the plaintiff or prosecution can show that what they are saying is the only reasonable explanation based on the evidence presented in court, it may reach the burden of proof known as “beyond a reasonable doubt.” To secure a criminal conviction, prosecutors must prove their cases beyond a reasonable doubt.

Why is the Burden of Proof Lighter in Restraining Order Cases?

Although a restraining order is often issued due to criminal circumstances like domestic violence, the court is not deciding whether to convict the accused or not, so “beyond a reasonable doubt” levels of evidence are not needed. The court is only deciding if the accused should be restrained and if the accuser should be protected, which requires the lower burden of proof that depends only on a “preponderance of evidence.” The idea is that it should be difficult to convict someone of a crime but easy to protect someone from potential crimes.

What Evidence Can Meet the Burden of Proof for a Restraining Order?

With the help of a restraining order attorney, you can prepare a case to bring to court when requesting a temporary or permanent restraining order, including a variety of evidence.

Evidence that could help prove your arguments in a restraining order case includes:

  • Medical records showing your injuries.
  • Criminal record of the accused.
  • Statements from family members, friends, neighbors, etc.
  • Video footage of the assault or abuse.
  • Text message records of verbal abuse or threats.

When you are requesting a temporary restraining order, the hearing will usually not involve the accused, but you can still bring evidence to support your claims. A preponderance of evidence is a “low” burden of proof, but it is still one that should be taken seriously. If you want a permanent restraining order, the accused will have a chance to defend themselves in court with arguments and evidence, so it becomes even more important to bring evidence of your own and to work with an attorney.

Burden of Proof for Extending a Restraining Order

If you already have a permanent restraining order but want to extend it, the burden of proof required for the extension will be the same as it was when the order was first granted. Don’t assume that it will automatically be extended just because it was approved in the first place. It’s even possible that the judge will want to see even more convincing evidence for an extension. Again, working with a domestic violence lawyer or restraining order attorney is recommended.

Gill Law Group, PC offers compassionate and professional legal counsel for anyone involved in a domestic violence and/or restraining order case in Orange County, CA. We can represent people who have suffered from domestic abuse or people who were accused of it. For more information, call (949) 681-9952 and request a complimentary initial consultation with our attorneys.