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PINKHAM & ASSOCIATES

PERMANENT RESTRAINING ORDER, “A REASONABLE APPREHENSION OF FUTURE ABUSE”

If a judge grants your request for a restraining order, the judge can only make that restraining order last for a maximum of five years. California Family Code Section 6345(a).
 
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Though you may not know it, Domestic Violence Restraining Orders (“DVRO”) are NOT permanent. They come with an expiration date. If a judge grants your request for a restraining order, the judge can only make that restraining order last for a maximum of five years. California Family Code Section 6345(a). However, upon the request of a party, that domestic violence restraining order can be renewed, “either for five years or permanently, without a showing of further abuse since the issuance of the original order.” California Family Code Section 6345(a).

But, this further, or even truly “permanent” DVRO, is not automatically granted. Restraining a person’s liberty (freedom to move about as they wish, where they wish) is not something that the Courts take lightly. Rather, unless the restrained person does not object, the protected person must show a “reasonable apprehension of future abuse”.

In the case of Richie v. Konrad (2004) 115 Cal.App.4th 1275, a woman was granted a restraining order against a man who was her fiancé. The parties moved to separate states after the granting of the restraining order, but before the expiration date, the woman then asked the Court to renew the restraining order permanently. The trial court granted the permanent renewal on the basis that California Family Code Section 6345 only required the protected party to request a renewal.

The appellate court reversed and set forth the standard that in granting a renewal for a Domestic Violence Restraining Order, that the protected party must show a “reasonable apprehension of future abuse.” That is, evidence that demonstrates there is sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.

The court set forth a series of factors in determining whether the “Reasonable Apprehension” test is satisfied.

First, the Court may look at the existence of the initial Domestic Violence Restraining Order and the facts which led to its granting. This is not a conclusive evidence of reasonable apprehension of future abuse but is relevant and may in fact be enough to provide the necessary proof to satisfy the Reasonable Apprehension test.

Secondly, another factor is whether there have been any significant changes in circumstances surrounding the event justifying the initial protective order since that original order went into effect. Have the parties moved away or on with their lives so that an opportunity for future abuse has diminished to the degree the court may no longer support a renewal? Or have circumstances remained substantially the same from before the restraining order? Or perhaps have circumstances changes so that the chances of domestic violence are increased?

Another consideration, though by themselves may not justify the denial of a renewed Domestic Violence Restraining Order, is the burden faced by the restrained party. A Domestic Violence Restraining Order carries with it real consequences, such as the social stigma which may affect employment and future relationships. Also, where there are children involved, the restraining order may have a negative effect on child custody. Then there is the prohibition against owning firearms, which may negatively impact the restrained person’s employment, safety or simply their lifestyle. However, the more likely that physical abuse is, the lesser the weight this factor is given.

In a recent case, In re Marriage of Martindale and Ochoa (2018) 30 Cal.App.5th 54, the wife was not granted a renewed permanent Domestic Violence Restraining Order because the Court there found that she had no reasonable apprehension of future abuse. The Court heard testimony of how the husband would leave the area immediately after seeing wife, and otherwise took care to not be in places where wife may be found. In fact, the Court found significant that wife joined a gym while knowing that husband was a member, demonstrating that she did not have an apprehension of future abuse, as well as the fact that when husband went into a bar that had wife inside it, husband immediately left but wife took the time to insult and defame husband to other bar patrons.

All this is to say that your actions during the time that a Domestic Violence Restraining Order is in effect can have consequences that bear on its potential likelihood of renewal.

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