Family Code (FC) Section 6345 (a): In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article may have a duration of not more than five years, subject to termination or modification by further order of the court, either on written stipulation filed with the court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years permanently, without showing of further abuse since the issuance of the original order, subject to termination or modification by further order of the court, either on written stipulation filed with the court or on the motion of a party. The request for renewal may be brought at any time within the three months before the expiration of orders.
In order to obtain a domestic violence restraining order, the abused party needs to show that it was more likely than not that he or she suffered abuse at the hands of the other party. This is set forth in the Domestic Violence Prevention Act (DVPA), which can be found in California Family Code section 6200 et. seq. Domestic violence restraining order requests are usually presented to the judge in a hearing with live witness testimony. After the conclusion of the hearing, the judge assesses the evidence and the credibility of the witness testimony and either grants or denies the request for a restraining order. If the Court grants the request, it may make an order lasting up to 5 years. On a renewal of a restraining party, an abused party can ask the Court for the restraining order to be renewed permanently. The standard of proof for renewal is also lower at a preponderance of evidence.
FC 6345 provides that such an order may be renewed “without a showing of any further abuse since the issuance of the original order.” The only required showing is a reasonable fear of future abuse. In Ritchie v. Conrad (2004) 115 Cal.App.4th 1275, the appellate court reversed a trial court’s denial of a renewal request, cleared up some misconceptions about the process: “So there should be no misunderstanding, this does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates 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.”
The Court noted that the mere existence of the initial order is a significant factor and held “that the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test.” While renewals may seem to be less challenging, they are by no means automatic.
The case of Rybolt v. Riley (2018) 20 Cal.App.5th 864, establishes legal precedence in at least two ways. First, the appellate court affirmed the trial court’s consideration of a restrained party’s actions (threatening, harassing, controlling, and manipulating) toward the survivor during shared parenting time (their child’s extracurricular activities) as “abuse” under the DVPA, and as violations of a Domestic Violence Restraining Order (DVRO). Thus, this case instructs trial courts to consider everyone’s physical and emotional safety and wellbeing when crafting parenting plans (custody and visitation). Second, the appellate court affirmed the trial court’s considerations of the “burdens” that a DVRO renewal could place on the restrained party and stated trial courts should consider the restrained party’s overall career to determine how a renewed DVRO could impact their employment prospects.
Mother testified that she is in constant fear of the father of her son and that she does not feel safe around him. She explained that part of her fear stemmed from never knowing whether he would actually show up to events and violate the restraining order. She said she gets anxious, shaky, and nauseous whenever he is around, and has trouble sleeping. She installed video surveillance at her home and changed all the locks. She also testified that her son is in conflict when she and the father attend events together, and that he worries about the distress she feels when he is around.
The court found that the mother’s apprehension of future abuse was genuine and reasonable, that he had violated the restraining order on several occasions, that he used extracurricular activities as a pretext to manipulate, control, and disturb her. The court found that circumstances had not sufficiently changed to reduce the need for continued protection and renewed the restraining order for five years.
When contested, a request to renew a restraining order should not be granted pursuant to FC 6345 simply because the requesting party has “a subjective fear the party to be restrained will commit abusive acts in the future.” (Ritchie v. Conrad (2004) 115 Cal.App.4th 1275, 1288) “The ‘apprehension’ those acts will occur must be ‘reasonable.’ That is, the court must find the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is male) in the same circumstances would have a ‘reasonable apprehension’ such abuse will occur unless the court issues a protective order.”
FC 6200 et seq. does not require imminent and present danger of abuse. (Ritchie, supra, 115 Cal.App.4th at p. 1288.) “In other words, under this objective test, ‘[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a “reasonable apprehension” of future abuse. . . . [T]his does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates 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.’ ” (Lister v. Bowen (2013) 215 Cal.App.4th 319, 332-333.)
In evaluating whether the requesting party has a reasonable apprehension of future abuse, “the existence of the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof to satisfy that test.” (Ritchie, supra, 115 Cal.App.4th at p. 1291.) While the trial court may look behind the initial order itself to the evidence and findings on which the order was based in appraising the risk of future abuse, the restrained party is not permitted “to challenge the truth of the evidence and findings underlying the initial order.” (Id. at p. 1290.)
Fear of physical abuse is not required to renew a restraining order. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1464 [“there is no requirement that the party requesting a renewal have a fear of physical abuse”].) DVPA covers a myriad of conduct beyond mere physical abuse.
Child abuse is relevant in renewals. In De la Luz Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, evidence of abuse against the child of someone who has a DVRO is relevant information and should be considered when deciding whether to renew the DVRO. The court reasoned that because abuse against a person’s child disturbs the protected party’s peace and can cause fear of future abuse to both the child and the protected party. Child abuse must also be considered when deciding whether “good cause” exists to add children as protected parties to a DVRO. The decision also confirms that fear of future physical abuse is not necessary to renew a DVRO.
I have represented both sides (the protected person and the person who is contesting the DVRO) so I have a clear understanding and knowledge of how each side is detrimentally affected if a DVRO is granted or denied. The judge’s decision to issue or not, a restraining order will impact the family for up to five years and for renewals, it could be a permanent order. Being prepared is critical. If you need my assistance, email me at [email protected] or call my office at 310-601-7144.
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