By Donald P. Schweitzer, CFLS
Every once-in-a-while I come upon a case where the Family Court judge issues a Domestic Violence Restraining Order with an expiration date of less than the normal five-year period. Pursuant to Family Code section 6345, the Family Court judge is well within his or her discretion to issue a restraining order for less than five years as the Family Code states
In the discretion of the Court, the personal conduct, stay away, and residence exclusion orders contained in a Court Order issued after notice and a hearing under this article may have a duration of not more than five years, subject to termination or modification by further order of the Court either on written stipulation filed by the Court or on the motion of a party.
Fortunately, however, due to a recent Appellate Court decision, victims of domestic violence may get a second bite at the apple by obtaining a renewed restraining order with a longer duration. In the case of Avalos v. Perez, the Court of Appeal held that the Trial Court erred by renewing a restraining order for two years instead of five years as required by the Family Code. In Avalos v. Perez, the petitioner sought a restraining order against the defendant based on allegations that the defendant was repeatedly physically, sexually, and mentally abusing her and that he had threatened to harm her and her family. After the trial, the Family Court judge issued a two'year restraining order, and at the time the petitioner did not raise any objections to the limited duration of the order.
Two months before the restraining order was to expire, the petitioner filed for a renewal of the Domestic Violence Restraining Order in Family Court. In support of the renewal, the petitioner claimed that the defendant sent a third-party to her workplace to "send her greetings." At the hearing, the petitioner testified that she was afraid of the defendant because he apparently knew where she worked, and she believed that he may repeat the domestic violence. At the conclusion of the hearing, the Trial Court expressed doubt that the petitioner was truly in fear, and renewed the restraining order for another two years rather than five years.
On appeal, the petitioner argued that the Trial Court erred by failing to renew the Domestic Violence Restraining Order for five years. In rendering a decision, the Appellate Court looked at the plain meaning and language of Family Code section 6345(a), and noted that restraining orders may be renewed for five years and that the Code did not give the Family Court discretion to renew it for any period less than five years. In other words, the Court of Appeals stated that a two'year renewal of an existing restraining order is not authorized by the plain language of Family Code section 6345.
The Court of Appeal also held that the petitioner's failure to object to the duration of the Domestic Violence Restraining Order was not fatal to her appeal.
Finally, the Court of Appeal also held that the petitioner's claim of continued fear was amply supported by the defendant's conduct prior to the termination of the existing order and the history of the defendant's abuse against her. Therefore, we can conclude from this decision that a victim of domestic violence does not have to assert new domestic violence in order to obtain a renewal of the Domestic Violence Restraining Order. Instead, the victim simply needs to prove by preponderance of the evidence, that there is continued fear based on the defendant's conduct. Furthermore, the victim's fear does not have to be based entirely on new evidence of wrongdoing because the trial court can look to the extent of the domestic violence that was proven at the first hearing.