What is the burden of proof in a restraining order case?

In a criminal case it is well known that the burden of proof for the prosecution is “beyond a reasonable doubt”. While we need not go into great detail here, suffice to say that the judge or jury need to be really certain that a person has committed a crime in order to convict them. Not so with a restraining order. A restraining order case isn’t really a civil case and it isn’t really a criminal case either. Because it involves the restraint of liberty (meaning that an individual with a restraining order granted against them winds up on CLETS, or California Law Enforcement Telecommunications System, which is not a good thing) it is deemed a “quasi-criminal” case.

Because the victims of domestic violence are so numerous, and because these victims are likely to continue to be victimized by the perpetrator, who is usually a family member, spouse, or significant other, the burden of proof is lower in California Domestic Violence Restraining Order cases.

Domestic Violence Restraining orders, often referred somewhat inaccurately as “TRO”s (Temporary Restraining Order) comes under the Family Code Section 6200. While 6200 is silent on the issue of what the burden of proof is, the California Civil Code states that unless otherwise stated, the burden of proof is by the preponderance of the evidence.

This is the lowest standard of proof and means that a judge sitting as a trier of fact need only believe that it is more likely than not that the victim is telling the truth.

This is good if you are an actual victim of domestic violence. This is bad if you are falsely accused of domestic violence, because it can literally be your word against their word. Without a skilled attorney who can impeach the credibility of the other party, perpetrators and false accusers can win.

The extraordinary thing is, that despite the fact that you could lose your job, lose your kids, and your life could be totally ruined, you still might go in there and throw yourself on the mercy of the court. To say that this is a bad idea is like saying the titanic had some issues with leaks.

If you are facing a TRO, call an attorney immediately and make an appointment.