Criminal Defense Q&A: Can He Force Me to Lift the Restraining Order by Suing Me?
But what about criminal restraining order? Can a restraining order that issued from a criminal court be terminated early and as easily?
Question:
If I have a restraining order on a person for 2 years, can the individual sue me to have it removed? The order was for spousal abuse.
Answer:
No.
If the restraining order was issued by a civil court, then there are only two ways to terminate a restraining order: either (1) it can expire automatically at the end of its term; or (2) the Court can terminate the restraining order before the expiration date. A restrained person cannot sue the victim to compel her to drop a restraining order.
For instance, restraining orders obtained from a family law court or civil court can last for up to 5 years. Rather than wait for the order to expire, one, or both, of the parties may wish to terminate the restraining order sooner. In that instance, the order cannot be terminated early without the Court’s approval. See Family Code §6345(a); Code of Civil Procedure §527.6(j)(1).
In a criminal case, a restraining order can be issued while a case is pending. If the accused person is ultimately convicted of domestic violence, then the restraining order will remain in effect through the pendency of the case and up to 10 years after the conviction. Penal Code 136.2(a)(1), (i)(1); People v. Stone (2004) 19 Cal. Rprtr. 3d 771, 775.
Unlike a civil restraining order, a criminal restraining order cannot be terminated early; it remains in effect until the expiration date of the restraining order. Penal Code 136.2. (Note: you can modify a criminal restraining order to allow for peaceful contact to effect the safe exchange of your children pursuant to a court-ordered visitation schedule. See Judicial Council of California Form CR-160.)
Continue reading criminal defense attorney Michael J. Ocampo’s answer at Avvo: If I have a restraining order on a person for 2 years, can the individual sue me to have it removed?
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
