How do I go about trying to get a restraining order expunged? My husband is currently in San Quentin state prison. He will be coming back for resentencing to Sonoma County sometime in February. The restraining order was filed by an ex girlfriend 10+ years ago. Due to having that on his record, he is unable to have family visits. Thank you for your help.
If a criminal restraining order is issued because a person was convicted of domestic violence, then the restraining order can remain in effect for up to 10 years after the conviction. Penal Code 136.2(a)(1). After 10 years, then, the restraining order should expire by operation of law.
To be safe, your husband may wish to petition the Court for a hearing to terminate the restraining order early. Even if the restraining order has expired, requesting a hearing will bring the matter to the Court’s attention, via the proper protocol.
At the hearing, the Court can agree to terminate the restraining order or, if the order has expired by operation of law, provide you with a minute order stating so. Either way, you’ll have something in writing from the Court confirming that the restraining order has been terminated. A document from the Court stating that the restraining order is no longer in effect can only improve your husband’s chances of being able to have family visits.
In Orange County, a restrained person can petition the Court to terminate the criminal restraining order early: https://occourts.org/forms/local/l402.pdf. But not all counties have a specific petition that a party 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.
It would be prudent to consult with a criminal defense attorney in your area regarding the most effective way to have the Court address the status of your husband’s restraining order.
Read other criminal defense attorney answers at Avvo: My Husband’s Ex Placed a Restraining Order on Him —How Can He Lift the Order So that I Visit Him in Jail?