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What do you even mean? Preponderance of the evidence is the standard used in most jurisdictions. They must satisfy all elements required to that standard. The elements may vary from jurisdiction to jurisdiction though. In my jurisdiction it is caused or attempted to cause harm, or put someone in fear of imminent serious physical harm.
You're wrong.
What do you think the legal test for this is? It's nothing more than someone claiming they are in fear.
Most jurisdictions will issue a restraining order solely on the claims of the filer. But if you want to save yourself some time verifying this, just look up state of California (biggest jurisdiction in the US). Word of the accuser is all it takes. Then go look up the state of California guide for bench judges which requires judges to also revoke gun ownership rights for anyone who is the subject of a restraining order.
The restraining order process can be (and regularly is) weaponized, without evidence, by people who just want to make life a living hell for their ex who pissed them off, with no repurcussions for false accusations.
Some people actually believe you shouldn't have your rights trounced without due process of a trial.
I'm an attorney who has represented clients seeking restraining orders and those opposing them. I assure you I'm not.
In my jurisdiction, a filer has to complete an affidavit and appear before a judge. At that point a temporary order can issue for no more than 10 days. That allows time for the Defendant to be served and appear for a two party hearing. After that the temporary order can be extended for up to one year, dissolved, or allowed to expire.
The Defendant will be heard within 10 days. I'm not sure how you'd better balance the competing interests. If an order isn't issued, someone could be seriously harmed or killed.
You're saying that judges are instructed to remove the guns of someone who is determined to be a reasonable threat to harm another or cause serious bodily harm? Fantastic!
How often do you imagine that restraining orders are weaponized, versus the number of times they're issued because of need? Not to mention that affidavits have to be sworn under the pains and penalties of perjury, that can include years in prison.
State population of California is roughly 39 million. State population of Florida is roughly 22 million. That alone covers 18% of the US population.
For California: see California Family Code, Chapter 2, Section 6250, Paragraph (A) here: https://studentaffairs.fresnostate.edu/survivoradvocate/documents/CA Victim Protection Statutes.pdf
Excerpt from the 'requirements' section:
For Florida: see 2023 Florida Statutes, Title XLIII (43) Domestic Relations, Chapter 741, Section 740.30. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0741/Sections/0741.30.html
Relevant excerpt describing the requirements and process:
In both states, all it takes is the unsubstantiated claim of the accuser on a sworn petition to 'claim they feel afraid'. Funny that you lead with "I'm an attorney" when the process doesn't even require an attorney in Florida. I'm not going to waste my time looking this up for each and every state, but I'll assert that Florida is not alone on the lack of requirement for an attorney to file the motion. I'll also assert that neither California nor Florida are alone in the fact that neither require any evidence beyond the say-so of the accuser claiming they feel threatened. But since you do claim to be an attorney, I invite you to read those state statutes, tell me I'm wrong, and assert that the process cannot be weaponized by the accuser just to make life a living hell for the accused. When was the last time you even heard of someone suffering any consequences at all for filing a falsified petition for restraining order? I'll bet never. I've witnessed several instances of this happing with zero consequences, not against me, but against friends and family) and even after being proven false later in an actual court proceeding, there were zero consequences for the falsified petition even when the financial and reputational damage caused to the accused was substantial.
If you really are an attorney, you must practice in a jurisdiction with stricter requirements. Lucky you. The topic we are discussing is a national issue, not a local-to-you one, so you must consider the reality that not all jurisdictions are like yours.
Yes, the terms used in those statutes are substantially similar to the terms used in my jurisdiction. I'm not sure what your point is?
What does substantiated mean to you? People are routinely convicted of crimes (beyond a reasonable doubt standard) on testimony and circumstantial evidence alone. Restraining orders are civil and only require a preponderance of the evidence standard.
Attorneys aren't required for any cases (except corporations outside of small claims). Family law, small claims, and restraining orders typically use a simplified structure to allow for easy access by the general public.
Regardless, the issuance of a restraining order still has elements that need to be met, and they need to be proven to a preponderance of the evidence.
Bullshit. All I gotta do I go to court tomorrow, stand in front of a judge and say, "bostonbananarama threatend to kill me". And we're done. Temporary order issued, every time.
Given the number of women that die to gun violence from domestic abusers, we already know your whole narrative you've made up here is false.
Your argument is that nobody ever lies to a judge? Really?
It's actually not that simple. You had better have a lot more details because you're going to get grilled by the judge. If that's all you say they're going to deny your request. I've seen numerous initial requests denied.
Even if you did get an order issued, it only lasts 10 days, and then you're going to have to appear again at a two party hearing.
Thank you for summarizing how every court in every state in every county in the US works. It's very helpful to know what all 400,000,000 citizens can expect to experience every single time.
Also keep in mind that all judges are robots immune from bias and every day experiences, especially elected ones since they all require strict prerequisites and training before they can sit.
I guess you'd prefer the scenario that someone made up based on what is almost certainly biased information?
Jurisdictions vary to be sure, but I've represented clients with respect to restraining orders, I know the law and I know the process. Judges hear liars every single day, they are not immune to bullshit, but they're pretty good at figuring it out.
All these downvotes from people who have never had it happen to them. Hope nobody has a divorce from an angry and vindictive woman! I was in the military, thousands of miles away, hadn't seen her for months, when she got a temporary restraining order against me all those decades ago.