Criminal Defense Q&A: Is There Any Way to Lift a Domestic Violence Restraining Order?
Question:
How can you remove a domestic violence court order that the judge put on? I want to know if there’s any way you can remove a restraining order that the judge assigned? And who is responsible for removing the order?
Answer:
If the restraining order was issued by a FAMILY LAW 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.
For the Court to terminate the family law restraining order early, one party (or both parties) must petition the Court to do so. After considering the request, the Court will decide whether to terminate the restraining order. Again, the restraining order cannot be terminated early without the Court’s approval. See Family Code §6345(a).
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.
In Orange County, the victim, the restrained person, or both can petition the Court to terminate the criminal restraining order early. At a hearing, the criminal Court will listen to both sides and decide whether to end the restraining order early or allow it to remain in effect.
Beware that not all counties have a specific petition that the parties can file to accelerate the termination of a restraining order. Some counties may allow a party to file his or her own self-generated petition with the Court. Other counties may not have a process for accelerating the termination of a restraining order. In that case, the criminal restraining order cannot be terminated early and will remain in effect until the expiration date of the restraining order. Penal Code 136.2. (Note: even in such counties, a Court can modify a criminal restraining order to allow for peaceful contact to effect the safe exchange of the parties’ children pursuant to a court-ordered visitation schedule. See Judicial Council of California Form CR-160.)
It would be prudent to consult with a local criminal defense attorney who is familiar with the customs of your county to evaluate the best way to proceed.
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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.
