As I've previously written on this blog, there are a million reasons that people seek restraining orders against each other. Coworkers, neighbors, exes and even siblings sometimes have conflicts that end up in court. After hearing all of the evidence presented, judges can issue restraining orders that remain in effect for up to 5 years -- and longer if renewed. Criminal Protective Orders can even remain in effect for up to 10 years.
A lot can change in 5-10 years, though. Parties might mutually decide to reestablish contact, or circumstances might be so different that the restraining order no longer serves any purpose. These situations can leave one party as the subject of an order that nobody actually wants, including all of the disabilities and loss of rights that go along with it.
Luckily, California law allows courts to modify or terminate existing restraining orders and Criminal Protective Orders. The protected party (AKA, "the petitioner") may simply request to terminate the order at any time by filing a few simple forms. The judge will probably have a couple of questions, like, "Did anyone threaten you or force you to do this?", "Is this what you want?", etc. but these hearings are usually quick and easy when the request comes from the protected party.
If the restrained party (AKA, "the respondent") wants to terminate or modify an existing restraining order, he bears the burden of proving that the order no longer serves the purpose for which it was issued. This is not his opportunity to argue that the order never should have been granted in the first place (or that he got bad legal advice, or that someone lied during the hearing, etc.). Those issues have already been decided. The respondent had an opportunity to raise those arguments at the time of the hearing on the original order, or else to file an appeal if he believes that the trial judge made some mistake of law. We are now past that stage.
This is also not the respondent's chance to argue that the order is burdensome, it hurts his ability to find a job, or that it infringes upon his 2nd Amendment rights. Those things were all true at the time the order was granted, and they are still true for every order that the court issues. If those were valid arguments, then court would never grant restraining orders against anyone.
Instead, the respondent should focus on explaining any change in circumstances since the order was originally issued. Specifically, he needs to prove that the order is no longer necessary because the risk of harm no longer exists. A judge hearing the request will start from the assumption that the order was originally granted for a good reason. The person requesting the modification should acknowledge that reason and explain why it is no longer valid today. If abusive behavior was related to alcohol, for example, maybe the respondent can prove that that he has received extensive alcohol treatment and maintained a significant period of sobriety. Treatment + sobriety would be considered "changed circumstances" that might convince a judge to modify or terminate a restraining order.
Our office was recently able to help a client successfully terminate an Elder Abuse restraining order. The order no longer served any purpose, but it continued to have a severe impact on the client's life. In this case, the protected party was an elderly woman. The restrained party was her adult son. The son was prohibited from coming within 100 yards of his mother, her home or her vehicle. In the years since the order was issued, the mother had passed away. Her home and her vehicle had both been sold by the executor of her estate. There was nothing that still needed to be protected today, but my client continued to carry around this worthless restraining order. The judge agreed that the order no longer served any valid purpose and so it was terminated.
If you or a loved one have questions about modifying or terminating a restraining order, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.