Do you feel threatened by a former spouse, landlord, or known associate? We are experienced in handling both domestic and civil harassment restraining orders in Santa Barbara, Ventura, and San Luis Obispo. Call us to discuss your case today.
The two most common forms of restraining orders in California are Domestic Violence Restraining Orders (DVRO) and Civil Harassment Restraining Orders (CHRO). The courts handle each type differently, and have different burdens of proof.
DVRO, or Domestic Violence Restraining Order
DVRO cases typically involve parties in a current or former dating relationship, spouses (often coinciding with a divorce case), or close family members. The law pertaining to DVROs is codified in California Family Code (Fam. Code) §6200, et seq., known as the Domestic Violence Prevention Act (DVPA).
The petitioner, or accusing party, and the respondent, or the accused, must have a close personal relationship. The respondent in a DVRO must be associated with the petitioner in one of the following ways:
- A spouse or former spouse
- A cohabitant or former cohabitant, as defined in Section 6209
- A person with whom the respondent is having or has had a dating or engagement relationship
- A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act
- A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected
- Any other person related by consanguinity or affinity within the second degree (blood relative)
The court takes fewer chances with domestic violence situations and will issue a restraining order if the petitioner can show “…to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” A petitioner must demonstrate that future abuse is likely to happen again.
CHRO, or Civil Harassment Restraining Order
Common civil harassment situations may be disputes involving landlord and tenant, employer and employee, neighbors, or non-romantic roommates.
Civil Harassment Restraining Orders (CHRO) may be issued pursuant to Code of Civil Procedure (C.C.P.) §527.6, which provides in subsection (a)(1) that a person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section. Section (b) defines “harassment” as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”
The course of conduct “must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.”
The language of the statute is broad and covers a wide range of behaviors by the respondent. Harassment can be physical violence, a threat of physical violence, or any course of conduct that “seriously alarms, annoys, or harasses the petitioner.”
The behavior by the respondent must be that which would cause a “reasonable person” to suffer substantial emotional distress. Civil harassment orders are typically not issued for behavior by the respondent that is offensive only to an overly sensitive petitioner; however, if the respondent is aware of such sensitivity, and intentionally exploits it, then that may be considered harassment.
The conduct must actually cause substantial emotional distress to the petitioner. As outrageous as the respondent’s conduct may have been, no order can be issued if the conduct does not actually cause emotional distress to the petitioner. For example, if the petitioner was not aware of such behavior at the time that it was being performed, then there is a good argument that the petitioner has not met this required element under the statute.
There is a high burden of proof that the petitioner must meet for an order to issue after the hearing. The petitioner must prove all the elements of harassment by clear and convincing evidence. While there is no set definition of what this burden of proof entails, it is generally seen as greater than a preponderance of the evidence (such as in civil trials), and less than beyond a reasonable doubt (as in criminal trials). California courts have defined the standard of “clear and convincing” as requiring a finding of high probability.
Once a restraining order–either a CHRO or a DVRO–is issued by a judge after a hearing, it is entered into the Criminal Law Enforcement Telecommunications System (CLETS) and will show up on a criminal background check.
This can be especially problematic for someone working at or applying for government positions, positions that require that applicant to have a clean record, or any job where the applicant’s criminal record is routinely searched as a condition of employment. Many employers will draw negative inferences about the applicant based solely on the issuance of a restraining order appearing in the applicant’s background check.
Once a restraining order after hearing is issued, the respondent is prevented from owning or purchasing a firearm while the restraining order is in effect. A violation of this order is typically charged as a misdemeanor.
TRO, or Temporary Restraining Order
A petitioner can simultaneously request a Temporary Restraining Order (TRO) while also requesting a restraining order. A TRO is issued to maintain the peace and protect the petitioner while the case is pending, and does not affect the respondent’s criminal record.
A TRO may be, and typically is, issued by a reviewing judge upon reasonable proof of either harassment or abuse and great or irreparable harm may result to the petitioner if the TRO is not granted.
Do I Need an Attorney?
Considering what is at stake for both parties, it is worth the expense to retain an experienced attorney to advocate on your behalf. A respondent who represents himself risks not utilizing his best possible defense, and faces damage to his reputation, as well as his current or future employment prospects.
Similarly, a petitioner who acts as his own counsel risks emotion clouding both his thought process and judgment. This could impair his ability to present his best possible case against the respondent. An experienced attorney is able to navigate the challenges presented by the high level of stress and emotion inherent in restraining order hearings and will present evidence in the most compelling and effective way, to maximize its effectiveness- providing the best possible outcome.