Prove your Protection Order or family law case

The lists in this guide are just suggestions. Exactly what evidence will help your protection order or family law case depends on your unique situation. You won’t need every list, or every item on a list. You may need items not listed here. 

Will the court gather evidence in my family law or protection order case?

No. If you want the judge to consider something in your case, you must find, file, and present it yourself.  The court doesn’t independently investigate cases. The parties must prepare the record that the judge will use to make a decision (to issue a court order). 

“Judge” here refers to judges and court commissioners.

In some situations, the court may do a Judicial Information System (JIS) search of you and the other party before a hearing to check for other court cases involving either of you. But even if the court does this, it won’t review court filings (pleadings) or evidence from other cases. The court must inform you that it’s performed this search so that it’s part of the record. 

Don’t assume the court knows about another party’s criminal history. The court doesn’t review law enforcement records, other than those that have been filed in your case. Law enforcement doesn’t automatically share records with the judiciary. 

Bottom line: If you want the court to know about something, tell it yourself and provide any supporting documents to the court and the opposing party ahead of time.

What is a “burden of proof?”

It’s the requirement that you prove your case by providing enough good evidence (enough proof) to convince the judge that you should get what you’ve asked the court for. In most civil cases, the burden of proof is preponderance of the evidence. This means convincing the judge that your side of the story is more likely true than false.

The person who files a protection order case (the petitioner), or who files a motion or asks the judge to do something in a family law case (also called the moving party) has the burden of proof. Example: in a protection order case based on domestic violence, the petitioner must prove it’s more likely true than false that the respondent has committed an act of domestic violence against the petitioner. 

Are there rules about what evidence I can give to the court?

Yes, there are complicated civil and criminal rules of evidence. Here are some important points to know.

The judge must strictly apply the rules of evidence in family law cases, but protection order cases are considered “special proceedings” where the rules of evidence don’t have to be followed as closely. This means the judge in a protection order case can consider more types of evidence. But not all evidence is created equally. Evidence allowed in a protection order case that wouldn’t otherwise be allowed won’t be as persuasive as other, more reliable kinds of evidence. 

Example: You can use hearsay statements (“my daughter said…” or “my sister told me…”) in a protection order case, but this type of evidence isn’t considered reliable, so the judge probably won’t give it the same weight as more credible evidence, such as the testimony of an eyewitness.

Courts differ about how you should present evidence to them, especially video and audio recordings. Ask the court clerk or facilitator, if there is one, what the court’s preference is.

Can I just submit my evidence the day of the hearing or trial?

No. You must file your evidence with the court and have a copy of it served on the other party before the day of the hearing or trial. If you give evidence to the judge to look at for the first time at your hearing, the judge will probably reschedule (continue) the hearing or not consider your evidence at all. 

Courts deadlines for submitting evidence and serving the other party may vary by county. Timelines in protection order cases may be more flexible. Ask the court clerk or facilitator, if there is one, what your deadlines are.  

What if I don’t have any of the documents discussed here?

For a protection order case, that’s ok. You still have your own first-hand knowledge of the situation and the facts of your case. 

For a family law case, especially one involving property or debt, the judge may require you and the other party to submit additional evidence before the judge can reach a decision on all issues.

Many protection order cases fall into the category of “he said/she said.” Your testimony – either in writing or in front of the court at the hearing or trial – is the most important piece of evidence you have.

Decisions in “he said/she said” cases often come down to credibility, or which party the judge believes more. Everything you tell the court, in writing or at a hearing or trial, must be true to the best of your knowledge. If the judge believes you more than the other party, that may be enough to tip the burden of proof in your favor.