Protective orders that California courts issue, such as domestic violence restraining orders, are not indefinite. Expiration terminates the ban on contact and legal redress of a protected party. If you need the order extended, the court considers the continued reasonable apprehension of future abuse.
The expiration date is not a strict limit, provided you observe the due process procedures to prolong the jurisdiction of the court over the restrained individual. You should know the options available if you are facing the impending expiration of your protective orders.
This article explains the procedures outlined in the California Family Code for renewing the order. It also serves as a roadmap for completing Form DV-700, understanding the evidentiary standard for permanent orders, and ensuring that your physical safety is legally maintained uninterrupted.
Option 1: Renewal Request (The Standard of Care)
The protection you rely on might end as the time of your protective order is coming to an end. However, the expiration date does not always mean that your protection cannot be renewed. You do not have to wait until you suffer another injury to pursue further security. The California law offers specific legal remedies, and the primary means is by applying for a renewal.
The extension of a Domestic Violence Restraining Order (DVRO) is the standard of care for a protected party who is still terrified. However, this is not an automatic process. To obtain a renewal of the restraining order, you must apply to the family court where your initial order was issued, using Form DV-700.
When filing a renewal request, you inform the judge that the circumstances that led to the initial order have not entirely faded away to guarantee your safety. These circumstances include:
- Background of abuse
- Power relations
- Level of threat
By renewing your order, you make sure your legal protection remains in force. The renewal procedure allows the court to extend your existing order, which is typically valid for five years. However, the judge may choose to impose other timeframes depending on the circumstances of your case.
When You Should File
Precision is crucial in meeting court deadlines, especially in San Diego, where court schedules are often overwhelmed. You need to take action before the protection order lapses. Waiting till the last moment will mean that you will not have time to renew your order before a judge can listen to your case. During that gap, there is no protection, and the restrained person would be free to contact you.
To prevent this risk, submit your request at least three months before the date of expiration. Although the law allows it to be filed at any time before expiration, it is risky to wait. A three-month notice will give the court clerk time to do paperwork and schedule a hearing within the time of your current order.
Moreover, filing early accounts for the logistical challenges of serving the restrained individual. After that, you are obliged to notify the other party after filing. If the restrained person is evasive, you will need to use all available days to serve the process. When you petition the court late, your order may expire as you navigate procedural requirements.
Early filing can also show the court that you are mindful of your safety and that you are actually afraid. On the other hand, not filing until the time of expiration may be perceived as lacking a genuine sense of urgency. It is the safest measure to consider the end of three months as a hard deadline to ensure uninterrupted protection.
Reasonable Apprehension vs. New Abuse as The Burden of Proof
A common misconception is that you must wait until you are attacked again before you seek an extension. This is false. The California legal system has acknowledged that the absence of violence in the course of a restraining order is typically a sign that the order is effective, rather than indicating that the danger is no longer present.
The legal test of renewal is not new abuse but a reasonable apprehension of abuse in the future. You need not show that the restrained individual harassed or threatened you as a result of the first order. Although the restrained person might have been compliant with the order over the years, a renewal can be awarded under one of the conditions that you prove that your fear is reasonable based on the history of the relationship.
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Evaluating the Totality of Circumstances
The judge considers the totality of the circumstances. For example, they take into account the nature of the abuse that had occurred in the first place. If the violence in the past was life-threatening, the court is more likely to declare your fear as reasonable. The court realizes that to the victims of trauma, the danger does not elapse just because time has elapsed.
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Scrutinizing the Restrained Person’s Conduct
Additionally, the court examines the conduct of the restrained person. Have they been responsible or attended an anger management program? Or still, do they accuse you? Even the minor actions that do not necessarily breach the order, like parking outside your office or making ambiguous and threatening posts on social media, can serve as evidence in favor of your reasonable apprehension.
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Articulating Fear in Your Declaration
This fear is to be stated in your declaration. State the reasons as to why you are afraid, or that you fear that the restrained person may take the expiration as an invitation to renew former habits. The law is proactive; it recognizes that you need not be victimized once more to remain under its protection.
Option 2: Seeking a Permanent Restraining Order
There are certain high-risk situations where a five-year renewal might not be appropriate to deal with the severity of the threat that you encounter. In these cases, you may apply for a permanent restraining order. The term "permanent" under the California Family Code refers to a renewal with a lengthy term, usually more than five years, or one that is indicated to have no expiration period. This is the eventual solution for those who are involved in chronic violence or obsessive behavior that is deeply rooted.
To secure a permanent restraining order, you need stronger evidence than for a renewal. Although the reasonable apprehension standard remains intact, most judges are more willing to limit the civil liberties of an individual forever without a strong argument. To achieve a permanent order, one must prove to the court that the restrained individual is a chronic, lifetime threat to one's safety.
Several aggravating factors will be taken into consideration by the court when determining a permanent order. The first and most important is the brutality and severity of the initial abuse. The court is much more likely to award a permanent order to guarantee long-term legal safety when the history includes the use of weapons, strangulation, sexual violence, or hospitalization. It is also the probability of future violence that the judge will take into consideration.
When the restrained individual has a track record of violating past court orders, when they have a criminal background involving violence, or when they are obsessed with you and have not abated with time, then these are good signs that a temporary renewal will just postpone the onset of danger.
A permanent order may also be sought if the restrained individual indicates that they wish to contact you again once the order lapses. As an illustration, when they have informed third parties or social media that they are counting down the days, this fact will play a paramount role in demonstrating that a five-year extension is merely a temporary solution and that they require protection on a long-term basis.
Option 3: Submission of New Order If You Miss the Timeline
Life is not predictable, and in some cases, you may have the best intentions, but you may fail to file a renewal order. If you find yourself at this stage, where the order has already lapsed, you can no longer apply the renewal process as noted in option 1. Only an existing and active order can have the renewal attached to it. Once an order lapses, it cannot be reinstated. The only choice you have in this case is to apply for a new restraining order.
Placing a new order initiates a new case number (or reopens the case that was already open) and requests that a Temporary Restraining Order (TRO) be issued pending a hearing. The difficulty with this is that you must prove to a judge that you currently require protection, despite having allowed the previous protection to lapse.
The court can examine the reason why there was a gap in protection. If you allowed the order to expire and then took three months before you applied to the judge to get another, they may wonder whether there is really an emergency. You will be required to explain the delay. You may not have known the expiration date, or a new incident may have frightened you again, even though you thought you were safe.
Moreover, although you can definitely use the history of abuse that underlies the first order, when you file a new order, there is a tendency to place a greater emphasis on new behavior. The judge will be interested in the recent events that led to the need to seek a new TRO. If there were no new cases of abuse, and you are only citing the history, the judge may not grant a new TRO; however, they may schedule a hearing on a long-term order.
This alternative is legally weaker than a renewal, as it breaks the continuity of the no-contact order. During the gap between the expiration of the old order and the issuance of a new TRO, the restrained person is technically free to contact you. This can empower an abuser, and years of boundaries can be reversed.
Additionally, when a new order is filed, the restrained individual can argue that the case was closed at the end of the prior order, making the conflict a more contentious litigation situation. So, although a new order is an option in case you have not met the deadline, it must always be considered a last resort, which is not an ideal plan.
Procedural Steps from Filing to The Hearing
The process of navigating the court's system of procedures can be as challenging as understanding the underlying legal grounds. To renew your restraining order successfully, you must go through a rigorous, multistep procedure. Any step or form that is filled incorrectly may lead to the rejection of your request, regardless of how legitimate your fear may be.
Step 1: Filing the Request
The process starts with the preparation of the proper Judicial Council forms. The first form you need to fill out is the Request to Renew Restraining Order (Form DV-700). You will give the case information and, above all, your attached declaration on why you would like the order renewed on this form. Here, you explain your reasonable apprehension of abuse. You should provide specific and truthful information. Include copies of your existing restraining order (Form DV-130) with this request to enable the judge to refer to the existing protections immediately.
Besides the DV-700, you are to provide a copy of the notice of hearing to renew the restraining order (Form DV-710). This is what the court clerk will complete to schedule a court date for you. After preparing your documents, you have to submit them to the court clerk in the relevant division of the San Diego Superior Court.
Upon filing, your request will be reviewed by the judge. In the event of the signing of the Notice of Hearing, your existing restraining order is usually automatically continued up to the hearing date. As this is an essential protective mechanism, it would not leave you vulnerable while waiting for your day in court.
Step 2: Service of Process
After obtaining your filed copies and your hearing date, the most significant obstacle you will encounter is service of process. These documents cannot be mailed out to the restrained person. According to the law, the restrained individual is to be personally served with a copy of the "Request to Renew Restraining Order," the "Notice of Hearing," and a blank copy of the form DV-720: Response to Request to Renew Restraining Order.
Personal service refers to the delivery of the documents in person to the restrained person by a neutral third party, neither you nor the person to whom the order is addressed. The sheriff can often do this for free if the order is based on domestic violence when the order is founded on domestic violence/threats of violence, or by a professional process server.
This step is non-negotiable. Failure to serve the notice to the restrained individual before the hearing means that a judge has no jurisdiction to go ahead. The restrained person is entitled to the right of due process to be informed that you seek an extension and be present in court to protest.
If the restrained individual is evading service, you must record all attempts to provide them with service. This is a document known as a "Declaration of Due Diligence." If you cannot serve them personally after the due diligence, then your attorney can petition the court to allow you to serve them in some other way, like publication. You can also request that the hearing be continued (postponed) so that you have more time to locate them. However, a continuance only increases your anxiety, and therefore, you must get professional services at the earliest.
Step 3: The Hearing
The hearing is the final step in the process. You must attend this hearing. When you do not show up when your name is called, then the judge will almost always reject your request, and your restraining order will lapse on that day. During the hearing, the judge shall look at your request and any response provided by the restrained individual.
The San Diego renewal hearing is usually formal yet concentrated. The judge can question you as to why you remain afraid. You are expected to articulate your apprehension clearly and succinctly. If the restrained individual appears and complains about the renewal, they may claim that they have already moved on with their lives and that this order is a burden to them. To refute these arguments, your presence (or that of the attorneys) will be needed to return to the court and remind them of the preventive character of the law and the history of violence.
If the judge permits the renewal, they will sign a new order (Form DV-730, Order to Renew Domestic Violence Restraining Order). This document acts as your new shield. This latest order should be filed in the same manner as the first order. If the restrained individual was absent during the hearing, deliver it to them to ensure that law enforcement is aware that the protection is still in effect.
Find Legal Help With a Restraining Order Near Me
Your physical safety and emotional stability are matters that should not be left to chance or navigated without a legal strategy of action that a professional can implement. You should not try to argue reasonable apprehension in a high-stakes renewal hearing without a qualified specialist. There is no guarantee of renewal, and an error in your declaration or failure to serve the respondent promptly could result in the court denying your petition, with your legal protection being removed immediately.
San Diego Divorce Attorney has the necessary experience to push your interests and gain the extensions or permanent protections that you need. Do not delay until your restraining order expires. Call us now at 858-529-5150 to book an appointment and ensure that your security is not interrupted.
