There are many kinds of restraining orders in California:
Domestic Violence restraining orders,
Elder Abuse restraining orders,
Civil Harassment restraining orders,
Criminal Protective orders,
Emergency Protective orders,
Temporary Restraining orders
“Permanent” Restraining orders
“Stay-away” Protective orders
“No-contact” Protective orders
Each of these restraining orders has specific requirements that must be met before a restraining order can be granted. Additionally, the burden of proof that must be overcome before a restraining order can be granted is entirely dependent on the type of restraining order being sought.
For example, imagine two neighbors get into a dispute regarding the property line between their homes. If during that dispute Neighbor A threatens Neighbor B with violence for trespassing on Neighbor A’s lawn, then Neighbor B may be entitled to a civil harassment restraining order. Neighbor B would have to prove that s/he suffered “harassment” as defined in the California Code of Civil Procedure §527.6 by clear and convincing evidence.
On the other hand, imagine instead of neighbors disputing, it was a husband and wife. Rather than filing a civil harassment restraining order, the party filing for protection – known as the “petitioner” - would have to file a domestic violence restraining order. In doing so, the petitioner would have to prove that s/he suffered “domestic violence” as defined in California Family Code §6200 by a preponderance of the evidence.
Although these standards of proof may sound similar, they are very different. Because California law takes additional precautionary steps to protect victims of domestic violence, the standard of proof to obtain a domestic violence restraining order is lower than the standard of proof to obtain a civil harassment restraining order.
It is always wise to consult an attorney before filing a restraining order because if you happen to file the incorrect documents or fail to serve the other party before the hearing, the judge could decide to dismiss your case without granting you the opportunity to be heard.
It is also wise to speak with an attorney if you find yourself on the other side of the courtroom defending yourself against a restraining order. As discussed, there are many nuances to acquiring a restraining order. A mistake by either the petitioner or the petitioner’s attorney could mean that the case against you is dismissed. To ensure that your rights are protected, make sure you speak with an attorney before showing up to court.