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What do I do If My Domestic Violence Restraining Order is About to Expire, but I Still Need Protection?

Posted by Jaime Kissinger | Sep 21, 2018 | 0 Comments

If you were granted a domestic violence restraining order after notice to the other party and a hearing on the matter, the court likely ordered it to last for one, three, or five years. Now that time has passed. Your domestic violence restraining order is about to expire, yet you still fear for your safety. What do you do?

You need to ask to have your domestic violence restraining order renewed. This process to do so is much less difficult than it was when you initially obtained your domestic violence restraining order.

Pursuant to Family Code §6345 a domestic violence restraining order may be renewed upon the request of a party without a showing of any further abuse since the issuance of the original order. This means you need only show a “reasonable apprehension” of future abuse. To prove “reasonable apprehension” you need only show that it is more probable than not there is a sufficient risk of future abuse and your apprehension is genuine and reasonable. It does not mean the court must find it is more likely than not future abuse will occur if your restraining order is not renewed. Lister v. Bowen (2013) 215 Cal.App.4th 319.

When a court determines “reasonable apprehension” they should consider the evidence and findings on which the original order was based. However, this does not give a party a right to challenge the evidence and findings made when the original order was issued.

The court should also consider any significant change of circumstances surrounding the events justifying the original domestic violence restraining order. In do so, the court must look at whether the parties have moved on with their lives, the degree of risk, and the burdens the domestic violence restraining order places on the restrained party such as social stigma, the potential for the restrained party to lose out on a job or promotion, and the potential affect the domestic violence restraining order may have on limiting the restrained party's access to the children.

What Happens if the Other Party Doesn't Challenge My Renewal Request?

Your request to renew your domestic violence restraining order will be automatically granted.

Do All of the Orders Made in my Domestic Violence Restraining Order Expire?

No. If your domestic violence restraining order contains orders for child custody, visitation, child support, or spousal support, these orders do not expire. Only the actual orders retraining the other party's conduct expire.

Do I Have To Show Fear of the Same Kind of Abuse As Was The Basis For the Original Domestic Violence Restraining Order?

No, your fear of future abuse need not be the same type of abuse as was the basis for your initial domestic violence restraining order. This issue was decided in De la luz Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389.

In De La Luz Perez v. Torres-Hernandez, Ms. De La Luz Perez' initial domestic violence restraining order was based on physical and emotional abuse. When she sought to renew her domestic violence restraining order, she cited documented child abuse as the basis of her “reasonable fear of future abuse.” The trial court denied her renewal. They found that any abuse by Mr. Torres-Hernandez towards their children was irrelevant because it did not speak to any abuse that Ms. Perez had been subjected to. On appeal, the court reversed. The appellate court found Torres-Hernandez' behavior disturbed Ms. De La Luz Perez' peace by destroying her emotional calm and made her fear for her safety and the safety of her children.

If My Restraining Order is Renewed, How Long Will It Last?

The court can renew your domestic violence restraining order for five years or permanently.

When do I Need to Request the Renewal?

The request for renewal may be brought at any time within the three months before the orders expire. This means you must bring your request before your domestic violence restraining order expires. If you fail to do so, then your restraining order will not be renewed and you will have to file another request for a domestic violence restraining order alleging new facts of abuse.

Can my Restraining Order Issued in Juvenile Court Be Renewed by The Family Court?

Yes. In the case, Priscila N. v. Leonardo G. (2017) 17 Cal.App.5th 1208, the appellate court held that a family court has jurisdiction under Family Code §6345(a) to renew a domestic violence restraining order initially granted by the juvenile court.

In Priscila N., the juvenile court issued a domestic violence restraining order for three years. Approximately four month later, the juvenile court terminated its jurisdiction over the children, issued an exit order, and transferred the case to family court. When the domestic violence restraining order was about to expire, Priscila filed a request to renew the order in family court. The family court found that they did not have power to renew the original restraining order since it was issued in the juvenile court, and that she needed to file for a new restraining order. Priscila appealed and the case was reversed.

This case is of significance because it confirms the Legislatures intention that the Family Code and the Welfare and Institutions Code work together to provide the greatest protection for domestic violence victims.

About the Author

Jaime Kissinger

Jaime L. Kissinger built her family law practice on the philosophy that families from all walks of life deserve access to quality legal services in some of the most vulnerable and difficult times of their lives. This belief drives her steadfast commitment to her clients in the Contra Costa commun...

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