Restraining Orders
San Diego
Restraining Orders
A restraining order is a Court order which requires a party to do or not do certain things, in particular to stop recurring violence, abuse or harassment. A restraining order can ask for as “little” as to stop further communication and contact, or as much as requesting a stay-away order and even a “kick out” or removal order wherein the restrained party is removed from a residence and disallowed from returning. We’re here to help you navigate San Diego’s restraining order laws.
A restraining order begins with a party requesting the Court make certain orders where certain, qualifying acts have occurred. A request for a restraining order is an ex parte request, as the Court only reviews the request and thus one side of the story. If the Court finds sufficiency in the request they will grant a temporary restraining order, whereas if the Court does not find so, they will deny the temporary restraining order. Either way, the Court will calendar a hearing on the matter and may at that time issue a permanent restraining order if sufficient cause is demonstrated.
There are three fundamental types of restraining orders, each with different qualification requirements and standards of proof. More common is a Domestic Violence Restraining Order, often filed in conjunction with a divorce or other Family Law proceeding. To qualify to file for a Domestic Violence Restraining Order, the requesting party must have or have had a “close” personal relationship to the other, for instance spouses, familial relationship, co-parenting relationship, or other dating or “household” relationship. The standard of proof in a Domestic Violence Restraining Order is by a preponderance of the evidence, or in other terms, “more likely than not”. Where a Domestic Violence Restraining Order is in conjunction with another Family Law case, there can be substantial carryover and consequences in the other Family Law case, particularly as it pertains to child custody and visitation.
An Elder Abuse restraining order is available to protect parties who are over the age of 65 from financial, physical and mental abuse. The standard of proof is by a preponderance of evidence, and a permanent order may be made on the basis of past abuse, without any particularized showing that the wrongful acts might be repeated. A Civil Harassment restraining order is available where there is not the close relationship as in a Domestic Violence Restraining Order, nor the age requirement of an Elder Abuse Restraining Order. The standard of proof for a Civil Harassment Restraining Order is a higher standard of proof, requiring clear and convincing evidence for a permanent order to be issued.
A retraining order is a substantial legal matter, and can have implications reaching beyond the direct Court matter. A restraining order is a restriction on fundamental personal freedoms. A permanent restraining order may have effects on future employment, housing ability, and as previously mentioned, on custody and visitation rights in a Family Law case. If you are the victim of abuse or harassment, seek legal advice regarding your options and rights to stop the conduct and protect your physical and mental health and peacefulness. If you have been accused of abuse or harassment, seek legal advice to not only protect yourself from the allegations, but from the ramifications and consequences a permanent restraining order may have on you.
