Domestic violence restraining order renewals (DVTRO’s) should not be taken lightly as criminal and civil penalties attach to the orders. During the existence of the orders the restrained party needs to adhere to the orders to make sure there have been no violations. Having a domestic violence restraining order on your record can seriously impact your life. A DVTRO will show up on background checks and might prevent you from getting a job or coaching a sports team. If the restrained party needs to cross the border, this can cause detainment as well as a more thorough search of belongings. Most importantly, the restrained party cannot possess any firearms while there is a DVTRO. A restraining order can last up to five years, however upon the expiration of the order the protected party can file a request for a Domestic Violence Restraining Order Renewals up to three months before the expiration of the order. The judge will consider their request and has the authority to grant a permanent restraining order which would be in existence until further court order. The potential is there for the DVTRO to remain in place for the restrained party’s entire life!
Can I Contest A Domestic Violence Restraining Order Renewal?
Absolutely! California Family Code § 6345 states “In the discretion of the court, the orders may be renewed upon the request of the party, either for five years or permanently, without a further showing of abuse since the issuance of the order. If the restrained party does contest the renewal, the protected party is not entitled to a renewal merely due to desire. Family Code § 6345 does not provide the trial court shall automatically renew the existing protective order, it only states the court may do so in the proper discretion of the court. In exercising its discretion, the court must inquire beyond only the petition party’s subjective desire to have the protective order extended. Just because a judge found sufficient grounds to grant a protective order three years earlier does not necessarily mean sufficient grounds remain.
What Does the Court Examine When Determining Renewal?
In a 2004 California Court of Appeals case Ritchie v Konrad (2004) 115 Cal.App.4th 1275, the court laid out the factors the court considers when determining whether or not to renew a DVTRO. Here are the factors:
- A trial court should renew the domestic violence prevention restraining order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains, a ‘reasonable apprehension’ of future abuse.
- The existence of the order itself often will be less telling than the facts supporting its issuance. ,The trial judge ordinarily should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire.
- It is relevant to the court to examine any significant changes in the circumstances surrounding the initial protective order as it may be that the opportunity and likelihood of future abuse has diminished to the degree that they no longer support a renewal of the order.
- If the abuse is not physical, it is also relevant to consider the burdens the protective order imposes on the restrained party.
Who’s Burden Is It?
The burden of proof is on the protected party to prove to the court by a preponderance of the evidence that there is a reasonable apprehension of future abuse. It should be noted that the burden is very low. The protected party only has to demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.
If the protected party can meet their burden of proof, the restrained party will have to show there is NO reasonable apprehension. This is done by demonstrating the factors the court can consider do not prove a reasonable apprehension. For example, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?
Minella Law Group Can Help!
If you need assistance with a Domestic Violence Restraining Order Renewal the qualified staff at Minella Law Group can assist you.
For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.