restraining order or protective order

There are different situations that people can find themselves in that might make a restraining or protective order necessary. If you, or someone you love, find yourselves in that circumstance, you’ll want to know what kind of proof you’ll require to show the court so they can see the necessity of the order. There are also a few different types of restraining or protective orders, depending on the circumstance.

Restraining Order or Protective Order

Most states do not note a distinction between a restraining order or protective order, and these terms can be used interchangeably. California is one such state. Both of these terms are defined in the same way and are meant to protect an individual from:

  • Stalking
  • Harassment
  • Physical abuse, or
  • Threats

The order would name one individual that is to be protected from another individual. Depending on the type of order, different types of behaviors will be prohibited. Typically, a no-contact order will be included, which prohibits:

  • Surveillance of any kind
  • Any kind of interaction on social media
  • Being within a specified distance of the individual
  • Texts or phone calls
  • Email

Different Types of Restraining or Protective Orders

California recognizes four different types of restraining/protective orders. They are distinct from each other in the relationship that both parties share.

  1. Workplace Violence Restraining Order. An employer may request a restraining order for an employee who has seen stalking, harassment, any kind of violence, or a real threat of violence within the workplace.
  2. Civil Harassment Restraining Order. To qualify for this kind of order, one party must have a loose relationship, such as a distant relative, roommate, or neighbor, and must be being harassed, stalked, threatened, or abused.
  3. Elder or Dependent Adult Abuse Restraining Order. This order has two different sets of requirements. First, one party must be at least 65 years of age and the other between the ages of 16 and 64. Second, the party must be a victim of financial or physical abuse, abandonment or neglect, treatment that is mentally or physically painful or being deprived of services or care by a caregiver that inflicts emotional, mental, or physical suffering.
  4. Domestic Violence Restraining Order. These types of restraining orders are perhaps the most widely recognized. These are issued to those who have been abused by a party to which they have a close relationship, such as spouses, partners, ex-partners, or someone with whom there is a close relation, such as parents, siblings, or grandparents.

Each of these circumstances is divided by the relationship both parties have with each other, whether that relationship is considered close or distant.

How Long Can a Restraining Order Last?

In different cases, a specific kind of order may be necessary. Restraining orders can be issued for an emergency, for a temporary amount of time, or permanently.

  • Emergency Protective Order. These can be issued in very special circumstances, and only an officer of the law may request this kind of order. This can last for up to seven days.
  • Temporary Protective Order. This is typically ordered for 20 to 25 days and is meant to protect someone while they wait for the courts to hear their case.
  • Permanent Protective Order. A permanent protective order is issued only after a temporary one has been ordered. It may last for a varying amount of time, depending upon the situation. It may fall under the category of family law.

What Can a Restraining Order Include?

In general, when a restraining order is issued, it can include a few different things. It will prevent, or prohibit, certain behaviors. This includes:

  • Personal Conduct Orders. Personal conduct refers to the conduct of the person whom the restraining order/protection order is issued against. It may prohibit the following conduct: contacting in any way, including calling, texting, messaging, or emailing; physically or sexually assaulting; threatening; stalking; harassing; disturbing the peace of the party who is under protection; or destroying the property of the person who is under protection.
  • Criminal Protective Order, (aka Stay-Away Order). This functions just as it sounds. It is meant to keep the person who is under the order a certain distance away from the other person and where they work, where they live, where their children go to school, live, or receive childcare, their vehicle, or other places of importance that they visit.
  • Residence Exclusion Order. This kind of order occurs when the two parties live under the same roof. The intention is to move the restrained person away from the protected person. This can occur under several circumstances, but in the instance of divorce, it may help to prove a parent is unfit to have custody of any children.

Burden Of Proof

The amount of proof required will depend on the type of restraining order. For a temporary restraining order, the required proof will be quite minimal. A statement will have to be made under the penalty of perjury. The term used by the courts is called “reasonable proof,” meaning there must be proof that this person will cause harm to you.

In the case of a domestic violence restraining order, there must be a preponderance of evidence, or the violence must be considered more likely than not. A judge would hear testimony from both parties and must believe that the act is at least 51% likely to have occurred.

For a civil restraining order to be issued, there must be more obvious signs. The level of proof is called “clear and convincing.” This means that the person who is petitioning must show the court clear and specific evidence that the acts have occurred. There must be some kind of physical evidence, not just verbal testimony.

Restraining orders can be tricky situations for both parties involved. The courts will be most concerned with protecting whatever party may come under harm, but the burden of proof in each type of case varies. If you’re on either side of this kind of case and need expert advice or representation, contact Judy Ford, Attorney at Law today.