One common question we receive, regardless of the duration of the restraining order, is: “My restraining order is going to expire soon, what can I do to remain protected?”
The California Family Code allows for protected parties to submit an application to renew their restraining order. The provision confirming the ability to renew restraining orders includes many important items:
(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 or permanently, without a showing of any 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 the orders.
California Family Code 6345
- Initial restraining orders can be no longer than 5 years.
- Parties may move to dismiss an effective restraining order, or may agree to dismiss a restraining order.
- The protected party may submit an application to renew their restraining orders.
- A renewal of a restraining order requires no further abuse during the time of the effective restraining order.
- If a protected party wants to renew their restraining order, it must be filed 3 months before the current restraining order expires.
How long can my restraining order last?
When issuing the first restraining order between two parties, the court may issue a restraining order that is in effect for up to 5 years. We have seen the court issue restraining orders for mere months, and we have seen courts grant requests for the full 5 years. Important: if your restraining order does not include an expiration date, then it will automatically expire on midnight 3 years from the date the restraining order was initially issued. The major question before the court when determining the appropriate length of the restraining order is evaluating the egregiousness/severity of the conduct/abuse (threats or actions to inflict serious bodily harm or death, vs a drunk argument where the parties exchanged harmful words).
The guide that the law requires judges to work from is this idea that it is possible to create space between divorcing parties that will create safe boundaries, ensure the physical, mental, emotional safety of the parties, with the goal that at some point the restraining order will no longer be necessary because the family law case will be complete. This is one reason why parties are allowed to agree to terminate a restraining order early, or petition the court to dismiss it early.
What if I want my restraining order renewed?
The reality of domestic violence is that there are times where the conclusion of the family law case doesn’t have an impact upon the conduct of the abusive party and there my be repeated violations of the restraining order, or perhaps the conduct was so harmful and damaging, that even if the restrained party is in another city or state, there is still tremendous fear and anxiety about what might happen in the future.
If you are a protected party, your restraining order is expiring, and you wish to renew it, you need to submit your application to renew the restraining order three (3) months before the expiration date. The application to renew is submitted on judicial council forms just like the initial application. The renewal form does not require the applicant to give a detailed explanation of why you are seeking the renewal; however, there are some questions you will be required to answer.
What evidence do I need to obtain a renewal?
The family code does not provide much detail regarding what the protected party must prove in order to obtain a renewal. In fact, the Family Code simply states that a restraining order, “…may be renewed … without a showing of any further abuse since the issuance of the original order.” This is a very important detail. While there are certainly restrained parties who violate the restraining order, there are a vast number of other restrained parties who do not violate the restraining order. What is critical here, is that the court is legally prohibited from saying: just because there was no violation of the restraining order, doesn’t mean that the restraining order can be liften. Lack of further acts of abuse is often evidence that the restraining order is in fact doing exactly what it is designed to do by protecting the protected party. In fact, California case law says that an initial restraining order proved effective may be a “good reason for seeking its renewal.” Cueto v Dozier (2015) 241 CA4th 550, 562.
While ‘further acts of abuse’ are not required to substantiate a renewal request, the court will need to hear evidence that you have reasonable apprehension that future acts of abuse will occur should the restraining order not be renewed. The court is looking to determine if it is more probable than not that there is a sufficient risk of abuse to find the protected party’s fear/apprehension is reasonable and genuine.
The court is able to review the initial details that lead to the first restraining order. The court may consider a wide range of variables that have changed in the case. It is important to note though, that individuals moving and no longer being in close proximity to each other does not appear to be grounds to deny a renewal request. One pivotal case involved a restrained party who had relocated from California to Arizona; the court found the protected party’s fear and apprehension genuine and reasonable, and over the evidence of the restrained party regarding their lack of ability to travel to California thus negating the possibility of future acts of abuse, the court renewed the restraining order.
Likewise, also consider a scenario where the abuse is related to stalking, or impersonating the restrained party online. In a scenario such as this where abuse is not physically in person, the court may give great weight to a protected party saying they are fearful that the abusive conduct would begin again should the restraining order be allowed to expire.
How long will the renewed restraining order last?
If the court grants your request to renew, and issues a new restraining order, the court has only two options to the duration of the restraining order:
1. 5 years
The court may not renew for 6 months, a year, or 10 years. The court has only one of the two options above.
If the court grants a new restraining order for 5 years, you are able to repeat the renewal process again, 3 months before it expires.
We hope that our series on California’s Family Law Domestic Violence Prevention Act has been informative and shed light on this very important area of the law. While we have taken a factual approach to this topic with the intention of bringing clarity to the law, we also want to take a moment to recognize the very real emotional, mental, and physical consequences of intimate partner violence and domestic violence. The growing literature and resources about the importance of having a trauma informed practice is invaluable and something we hope we bring to our clients and our work. If you have any questions or concerns, please know that we are here to offer you options and discuss how you can safely move forward. The legal aspect – such as filing for a restraining order – is just one component of how people can heal and move forward.
We invite you to review our reference page to see resources available to victims of intimate partner violence within the bay area. We update this page as often as possible, in the hopes of keeping a central list of resources available to our clients and the public.
If you, or a loved one, is facing the prospect of leaving an abusive relationship or family situation, please feel free to consider us an additional resource.
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