Restraining orders exist to keep people safe. They can provide a level of security if you’re afraid someone may hurt you. But before a court restricts your abuser’s freedom, it will require you to prove the allegations of your careful and thorough petition with evidence.
If you need a restraining order, you’ve come to the right place. If you haven’t already, read our blog on the basics of restraining orders, which discusses what restraining orders are and the process for getting one. Here, we discuss in more detail what you need to prove and the evidence you’ll need to gather in order to win your case.
What Do You Need to Show to Get a Restraining Order?
The specific elements you need to prove to get a restraining order vary from state to state, but in general, you need to show:
- A specific instance or instances of abuse or harassment (such as sexual assault by an intimate partner)
- The threat of further abusive behavior or harassment
In some states, you must also establish that:
- You are in a qualifying relationship with your respondent (e.g., current or former intimate partner, etc.)
- You are reasonably in fear of imminent physical violence.
When preparing your petition, you need to be careful. You need to allege specific facts. For example, instead of alleging that “he abused me repeatedly,” you should state, “on such and such date, at such and such a place, in front of so and so witnesses, he struck me across the face and threatened to kill me.” Something with that level of detail.
You also need to be comprehensive. If you don’t include a specific allegation in your petition, a court likely won’t consider it at your order hearing.
This may sound complicated, but it’s not that bad. Most courts have a form you can fill out. That ensures you meet the statutory requirements (e.g., your contact information, the respondent’s contact information, the identity of any kids together, etc.) while giving you the chance to tell your story.
Although you may be able to complete the form yourself, you may want to consult with a family law attorney or domestic violence attorney. They won’t charge you too much, if at all, for the initial consultation. And in many cases, the stakes are too high—you can’t afford to lose.
What Evidence Do You Need to Prove Your Case?
Now, on to how to prove the allegations in your petition. You need to offer evidence that the court will accept. Evidence takes two forms; direct and circumstantial. Direct evidence is something that proves a fact directly. For example, you could call a witness who saw the respondent hit you. Their eyewitness testimony tends to prove the specific instance of harm.
Circumstantial evidence is a little different. Circumstantial evidence, which can be just as persuasive as direct evidence, requires you to draw an inference to conclude that a fact exists. For example, if you walked into a room and saw a body on the ground and the respondent standing over it holding a smoking gun, you could infer that the respondent was the one who pulled the trigger and shot the victim. Restraining order cases typically involve a mix of direct and circumstantial evidence, and one piece of evidence (such as, for example, a police report) can tend to establish multiple elements.
In most states, your burden is to prove these elements by a preponderance of the evidence, which essentially means that they are more likely than not true. In some states, you need to show by clear and convincing evidence, a higher standard, that the elements exist.
Proving Harm
Proving specific instances of harm is pretty straightforward. You could show harm through:
- Your testimony that the respondent harmed you
- The testimony of any witnesses, such as a family member, who saw the respondent harm you
- A police report that documents physical harm you sustained
- Medical records reflecting treatment for harm done
- Photos of any injuries caused by the respondent
Proving Threat of Harm
Proving threat of harm is usually even easier. If the respondent verbally threatened you, you could testify about it or let the court listen to threatening voicemail messages. If they were stupid enough to threaten you in writing, you could give the court a copy of the communication (e.g., text messages, emails, direct messages, social media posts, etc.). Nothing is quite as powerful as showing the judge the actual words the respondent used to threaten you.
Proving Reasonable Fear of Imminent Harm
In those states that require proof of fear, your testimony that you’re afraid may be all that you need. But circumstantial evidence can be helpful here. You could testify about steps you took in order to keep yourself safe, such as avoiding certain places, changing the locks on your door, etc. In addition, a police report will show that you were afraid enough to call the police and that your concerns were reasonable (otherwise, the police wouldn’t have taken you seriously enough to write up a report). Testimony and documents that support your feeling afraid will enable you to establish this element.
Consider Consulting a Lawyer
Although these suggestions should help you take the basic steps, remember that you don’t have to navigate this process alone. You can get legal advice from a family law attorney or domestic violence attorney about how to draft your petition. If necessary, they can represent you in court. Given the stakes involved, a consultation with a lawyer is worth it. Stay safe, and good luck!
Related Resources:
- Restraining Order Basics (FindLaw’s Law and Daily Life Blog)
- How to Stop Domestic Violence FAQs (FindLaw’s Learn About the Law)
- Can Facebook Contact Violate a Restraining Order? (FindLaw’s Law and Daily Life Blog)
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Source: Law