5 Mistakes at a Restraining Order Hearing That Can Make You Lose

By Veronica T. Barton, California domestic violence defense attorney and creator of DEFEAT the DVRO

The short answer

Do not interrupt the judge or the other party, and stop talking if either of them starts talking over you. Stay on the point, which is domestic violence and nothing else. Bring your evidence and your witnesses to the hearing. Keep your temper, and if custody is involved, be ready to show the judge why you are a good parent, because even a finding of domestic violence does not necessarily mean you lose your kids.

Five ways to lose your restraining order hearing

I will explain five ways to lose your restraining order hearing so that you can avoid them. I'm a criminal defense and domestic violence restraining order attorney, and I help people put their cases behind them so that they can enjoy their lives and their freedom.

Mistake 1: Interrupting the other party or the judge

Some of us, myself included (pretty badly sometimes), are guilty of this. In conversation we get too excited, and we're thinking about what we're going to say instead of listening. This is even more true during arguments. If you're talking to your spouse and you're having a heated conversation, you might be tempted to interrupt. They're saying something and you think, "No, that's not true," and you want to get right in there.

You cannot do that during your restraining order hearing. I will take it a step further: if the judge or the other party starts talking over you, even if it's your turn, stop talking.

With the judge

With the judge, it's a sign of respect. Usually if the judge is interrupting you, they don't think that what you're saying is important, or they have a question about something that you have said. You need to stop and truly listen to the judge. That's the person determining your fate here.

With the other party

The other party shouldn't be interrupting you. I'm telling you not to interrupt them, but they might. If they do, and you stop talking and simply zip it, the judge is very likely to notice.

For all the fighting that we lawyers do in court, we generally do not break one rule: we don't interrupt each other. If you do, you will get in trouble with the judge. Each side gets a turn to speak. You can't speak over each other because there's a court reporter, and if you do, it's like nails on a chalkboard. Let the other side be the nails on a chalkboard when they interrupt you. Don't ever be that.

When you are angry at your ex

Again, it will be tempting. When you're with your current spouse or partner and you're having an argument, you might be tempted to interrupt. But when it's an ex, you're angry because they filed this at least partially false restraining order against you. You've been having a tough time, maybe sleeping in your car. They have possession of the whole house, and you're making the payments on it. You're going to be upset. Maybe they've taken custody of the kids. Stay calm and do not interrupt at all. Do not break this rule, especially with the judge. If you interrupt the judge, it's over. Don't do it.

Mistake 2: Not understanding what the case is really about

This is failing to understand what the case is about, what anybody is trying to prove or disprove. As a domestic violence restraining order attorney, sometimes I sit there all day long waiting for my case to be called, especially if my case will take longer, which means it goes last. I often watch people stand up there and talk about how they did all the housework and the other party never did any, or about how the other party cheated, and they bring evidence of it. Whatever it may be, if it's not about domestic violence, you probably don't want to bring it in.

There are some exceptions to this rule. If you got caught cheating and then the other party abused you because of it, you probably should bring that in as the petitioner.

Think about it. If you're the respondent and the other party cheated on you, and you prove to the judge that it's true, and the judge listens to you even though it's not relevant, what are you really proving here? You're proving that you had motive, and that you were probably pretty angry, to commit domestic violence. That is the opposite of what you want to prove.

Stay on point. That's important. This isn't about money. This isn't about who's the better spouse or who's a lousy spouse. It's not about any of that. It's just about domestic violence.

Mistake 3: Failing to bring your evidence or witnesses

If you are watching this YouTube video and doing your own research on how to win these, hopefully this isn't you, but I see people do this all the time. People say, "Your Honor, I do have a witness. I have my brother. He saw everything that happened, but I don't have him here today."

Bring your witnesses

You have to have your witnesses there. If you can't have your witnesses there and you're the respondent, you can continue the case one time. Get your brother or whoever your witnesses are, and get their schedule in advance, or have them tell you what it is, maybe by text. Make sure you're not leaving evidence behind and then saying, "I have it, but it's at home."

Print your evidence

Some people say, "I have all the evidence. It's right here on my phone." Some judges are okay with this and will look at it, but in general it's not a good idea, and many times they won't. It's not hard to take screenshots and print them out. If you have an iPhone and a Mac, you can use iMessage on your computer and save the conversation as a PDF. Include only what is relevant. If a text message or conversation is important for the judge to see because it disproves domestic violence (or, if you are the petitioner, because it proves it), make sure it is included.

I suggest printing it and bringing three copies. That is what attorneys do. It will look professional, and there's a chance that if you bring it on your phone, the judge will say, "I'm not going to look at it."

If you have video or audio

If you have any kind of video or audio, make sure you have a way to show it to the judge. I do not suggest doing it on your phone. If you have to do it from your phone, disable notifications. You don't want any kind of text coming up, or anything embarrassing popping up, when the judge is looking at your phone. Think about that in advance.

I suggest bringing a laptop, an HDMI cord, and a USB stick that has all the evidence you intend to show. That's what attorneys generally do, because the court sometimes wants to keep copies of the exhibit. You are not going to leave your laptop, so you leave your thumb drive there.

Make sure you have a way to plug it into your computer. Mine needs a little dongle to do so. Usually you can use that with the AV system (the audio visual system), which is how you get it on the court's TV screens. Sometimes they have little screens for the judge and witnesses, but those are not reliable.

I bring two laptops with me, one to use during the hearing and the other to hand over to the judge if I need to, so that the judge can view my evidence. If I have good evidence for my side, I show it to the judge.

Why this makes you more credible

Most people who come into the courtroom and are representing themselves are a hot mess. If you have everything together, you can say, "Not only do I have copies of my text messages printed out, but I have three copies here. I have one for the other side, as I'm supposed to, one for myself, and one for you, Your Honor." You're going to come across as very credible, a reliable and trustworthy person, and that is exactly what you want. That is exactly what you need in these restraining order hearings.

I show how to prepare your exhibits in Step 4 of DEFEAT the DVRO, including documents, text messages, and video and audio.

Mistake 4: Getting angry or expressing frustration

If you're watching this, you're trying to prepare as much as possible, and you're not someone who thinks you're going to lose your temper. But I want you to visualize what this environment will be like. This is not your normal everyday debate. It's probably going to be stressful, so prepare for that. If you're prepared, you can make sure that you don't express anger or frustration.

Think through the whole day

You go through traffic, which is annoying. You're nervous. You park, and that might be annoying or expensive. At most courthouses in Southern California, you have to go through security, which means you have to line up, and there are many other people there. Make sure you get there early. Otherwise you're sweating bullets, looking at your watch and wondering what's taking people so long to take their belts off.

Then you get up to security, and they're not always nice. Especially if you're not going to the courthouse every day, you might accidentally leave your cell phone or some loose change in your pocket. The metal detector dings, and now they're treating you like you're the biggest idiot in the world. That's frustrating.

Then you have to find the courtroom. When you get there, the bailiff is shouting orders at people. Tensions are high. The vibes are not good. Then you see your ex, whom you probably haven't seen for a few weeks. In front of the judge, in a whole courtroom full of people, that person is going to air your dirty laundry and say a lot of things about you, at least some of which are probably not true. That's going to upset anyone. Anyone's going to be at least frustrated in that situation.

Prepare ahead of time

Learn some coping techniques. That's far outside of what I do for a living. But when I go in and I get angry at the other side, a witness who I think is lying, or the judge, I tell myself that you can't get annoyed. You have to have that self-control. You're professional. You have the facade. You turn it on, and you don't turn it off until you leave.

Think about that, visualize everything, and visualize yourself getting through it without getting frustrated and without getting angry. Learn whatever techniques you need. If you're somebody who gets grouchy when you get hungry (that's me), make sure you have a good breakfast. Have whatever caffeine you need. Take good care of yourself, give yourself what you need, and remember that you can do this.

Mistake 5: Not preparing for custody (if you have kids)

This one is for people who have kids, where custody is involved. When you get your temporary restraining order, it probably says no visitation with your kids for several weeks, until the hearing. You may think, "I have to win this hearing. I'll do everything I can to win it, and then hopefully I'll win and have custody again."

You want to win the hearing. But if you lose the hearing (let's say the judge does find that there was domestic violence), you can still get custody of your kids in California. If kids and custody are involved, that's probably the reason they filed this restraining order in the first place, and if you're watching this and custody is involved, you already know that.

Understand the rebuttable presumption

Understand that there's a rebuttable presumption that it's not in the best interest of the child for you to have custody if there's a finding of domestic violence by the judge. This applies whether the finding came from a criminal case or from one of these domestic violence restraining order hearings. That means that even if the judge finds that there was domestic violence, even if the judge issues a restraining order to protect your ex, that doesn't necessarily mean that you lose your kids. Rebuttable means that you can show evidence to the judge.

Show the judge why you are a good parent

Show all the reasons why you are a good parent. Maybe you take your kid to the park every Saturday and play catch for hours. You are the one who wakes your kid up, gets them dressed, puts them to bed, gets them to school. Have all of those reasons ready that day, along with any witnesses you have to show that you're a good parent. A lot of people don't know that. Have all that evidence ready to present to the court. If there are pictures or videos of you with the kids, have all of that ready to present to the court.

It's important to do that, because there are many cases where the judge will find that maybe there was domestic violence. The judge only has to believe 51 versus 49 that there was domestic violence, so it might be pretty close. But that doesn't mean that you have to lose custody, and that may be the biggest thing on the line for you.

Frequently asked questions

What if the other party interrupts me at my restraining order hearing?

Stop talking and stay quiet. They shouldn't be interrupting you, but if they do and you stop talking, the judge is very likely to notice.

Should I talk about my ex cheating or being a bad spouse?

If it's not about domestic violence, you probably don't want to bring it in. This isn't about money, or about who's the better spouse or who's a lousy spouse. If you prove the other party cheated on you, what you are really proving is that you had motive and were probably pretty angry to commit domestic violence, and that is the opposite of what you want to prove.

What if my witness can't come to the hearing?

You have to have your witnesses there. If you can't have your witnesses there and you're the respondent, you can continue the case one time. Get their schedule in advance, so you know when they are available.

Can I show the judge my text messages on my phone?

Some judges are okay with this, but in general it's not a good idea, and many times they won't look at it. Take screenshots and print them out, and bring three copies. If you have video or audio, I suggest bringing a laptop, an HDMI cord, and a USB stick, and if you have to use your phone, disable notifications first.

If the judge finds domestic violence, do I lose custody of my kids?

Not necessarily. There's a rebuttable presumption that it's not in the best interest of the child for you to have custody if there's a finding of domestic violence, but rebuttable means that you can show evidence to the judge. Have your witnesses, pictures and videos ready that day.