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How to Defend Yourself at a Restraining Order Hearing in Santa Clara County Family Court

A uniformed sheriff's deputy comes to your work and walks up to you.  He hands you some papers and says you have been served with a restraining order.  The hearing is in less than 2 weeks.  You're shocked!!!  You want to oppose the restraining order at the hearing.  What should you do next?

Obey all Restrictions in the Temporary Restraining Order

The papers you were served with usually contain a temporary restraining order that is effective immediately and lasts until the scheduled hearing.  Read through the terms of the restraining order very carefully and make sure to obey all the restrictions.  Failure to obey them could torpedo your chances of successfully opposing a long-term restraining order at the hearing.  It could even lead to your arrest for violation of the order.

Consult an Experienced Attorney Immediately

Because time is very short, if you're going to get an experienced attorney on-board you should not delay.  Don't wait until the day before the hearing to consult an attorney as it might be too late.  Do it now while there is still time.  You can represent yourself at the hearing without an attorney, but if your accuser shows up with an attorney you could be at a tremendous disadvantage.  To maximize your chances of success you should have your own attorney.

Review the Restraining Order Paperwork and Write Down Your Response to Each of the Allegations.

The paperwork you were served with should describe specific incidents of alleged domestic violence.  Write down your response to each of those incidents.  Did those incidents happen as described in the papers or is there more to the story?  What really happened?


In describing each incident, try to answer the following questions to the best of your ability:

  • Who was present? Were just you and your accuser present?  Were there any witnesses?  If so, who were they and how might they be contacted?  A witness can be anyone who saw or heard the incident.
  • What happened during the incident?  Walk the reader through what happened during the incident.  Include a timeline if possible.
  • When did the incident happen? What day did it occur?  If you don't remember the exact date give an approximation and note that you are doing so.  What time of day did the incident occur? What were the lighting conditions.
  • Where did the incident occur?  Was it indoors or outside?
  • Why did it happen?  Was there any specific trigger that caused the incident?  If so, describe.

Write Down the History of the Relationship, Including Documenting all Incidents or Fights That Might be Construed as Domestic Violence.

Answer the same questions above for all incidents during the relationship.  This includes incidents not alleged in the other side's paperwork.  Also give a timeline of the entire relationship. 

Gather evidence

Sometimes, restraining order hearings can turn into "he said vs. she said" .... your word against your accuser.  This happens where neither side has any evidence to back up their claims.  The judge then has to decide which of you is telling the truth.  Because the judge has very limited exposure to each of you, it might be very hard to make the right decision.

Family court restraining order hearings use a "preponderance of the evidence" standard.  What this means is that in order to grant the restraining order the judge must find that the evidence and arguments are just slightly more convincing in your accuser's favor.  If the judge is convinced, the restraining order will be granted.  On the other hand, if the evidence and arguments weigh more in your favor or if the scales are exactly equal.... then the judge should deny the restraining order.

This is the lowest standard of proof used in court cases, and is a much lesser standard than the "proof beyond a reasonable doubt" used in criminal court cases.  

Get any evidence you can that might help to prove your story or disprove your accuser's story.  Here are some examples:

  • Photographs taken during or after the incident.  Perhaps you or your accuser took photos that help to support your version of events.  Did you suffer a bruise after the fight and take a picture of it?  Is there a picture of any property damage?
  • Emails and text messages - perhaps you or your accuser sent each other emails that are inconsistent with her version of events and support yours.
  • Witnesses - Did anyone else see or hear the incident?  Children under the age of 18 cannot testify at family court restraining order hearings and should not attend the hearing.  However, were other witnesses present?  The very best witness is a neutral third-party who has no relationship with either of you, such as a passerby or cleaning person.  However, even a possibly biased witness, such as your relative or mother, may still be better than no witness.  Note that a witness need not have actually been in the room.  For example, a neighbor who heard yelling through an open window is a witness.
  • Police report - were the police called?  Was there a police report?  If so, get a copy.
  • Medical records - were there physical injuries resulting in a trip to the hospital?  Get a copy of the medical records.

Prepare and File Your Response Declaration

You should not skip the response declaration and go to the hearing without it.  The judge will have read the other side's restraining order application.  If you haven't submitted a written response, going into the hearing the judge will almost certainly be leaning towards granting a long-term restraining order.  Depending on time available, it may not be possible for you to refute all the allegations during the hearing.  This puts you at a tremendous disadvantage.  To even the playing field, you should always submit your written response before the hearing.  Your response must be filed with the court by the deadline and must also be formally served on the other side.

Ask for an Extension at the Hearing if Needed

It may take more time than you have to hire an attorney or gather all the information needed to defend your case.  You can ask for one 30-day extension of the hearing date.  To ask for this extension you or your attorney will probably need to attend the currently scheduled hearing.  The judge will grant the extension, but will also reissue the current temporary restraining order so that it remains in effect until the new hearing date.

Prepare for the Hearing

Read through all the paperwork before going to the hearing.  Prepare a briefly outline of some of the points you'd like to emphasize to the judge.  Practice it in front of a mirror.  Don't bother trying to get your wording exact.  Don't expect to read your presentation to the judge.  But DO be prepared to have a conversation with the court and to answer questions.  If you have any documents to present, bring 3 copies (one for, one for the other side, one for the judge).  If you hire an attorney, the attorney should do much of this preparation for you.

Attend the Hearing

At the hearing, answer all questions openly and honestly.  You are under oath.  Don't damage your credibility by attempting to overstate or understate what happened.  Tell the truth.  If the judge finds you to be honest and your opponent to be less believable, you may have an advantage.

If a Future Incident Occurs

If it looks like an incident that could be construed as domestic violence is about to occur do whatever you can to defuse the tension.  This may include leaving the premises, etc.  Use common sense.  If necessary, call the police.  After any new incident, immediately write down a detailed description of exactly what happened.  If you were injured, take pictures of your injuries and consider going to the police.
 
If you're not under a temporary restraining order, think carefully when communicating with the other side.  Before sending an email, text message or voice message ask yourself how this would look if the judge sees it.

Maximize Your Chances of Success

Restraining order hearings in family court can be quite complex.  If the other side is seeking an unwarranted restraining order against you, you have the right to defend yourself in court.  To maximize your chances of success you should consult an attorney. The Law Offices of David T. Mar, in Cupertino, California, has been helping clients with Family Law and Divorce matters throughout Santa Clara County since 2000. If you would like to schedule a free initial consultation, call (408) 973-7233 today.

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About me:  Graduated Magna Cum Laude from the Santa Clara University School of Law in 2000 with a class rank of 12 out of 287 (top 4% of my class).  I was an editor for Law Review and a participant in Honors Moot Court.  Most of my practice has been in the Santa Clara County Superior Court.  For the last 5 years, I've practiced Family Law in Silicon Valley, with my office conveniently located in Cupertino. READ MORE about my background.

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19925 Stevens Creek Blvd. #100
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The Law Office of David T. Mar handles family law matters for clients throughout Silicon Valley and Santa Clara County, including the cities of Cupertino, Los Gatos, Milpitas, Mountain View, Palo Alto, Redwood City, San Jose, Santa Clara, and Sunnyvale.

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Law Offices of David T. Mar
19925 Stevens Creek Blvd. #100
Cupertino, CA 95014
P: (408) 973-7233
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