Changing a Domestic Violence Restraining Order

Defending against domestic violence charges and dealing with a protective order can be one of the most challenging experiences for anyone involved in the criminal justice system. In California, defendants charged with or convicted of domestic violence offenses often find themselves subject to comprehensive protective orders that restrict or prohibit contact with the alleged victim. These protective orders—sometimes called restraining orders or criminal protective orders—are issued under various legal authorities, including California Penal Code Section 1203.097 PC (for those on probation) and California Penal Code Section 136.2 (for those with pending criminal charges). If you or a loved one finds that a domestic violence restraining order is causing undue hardship, or if the protected party wants to alter or drop the order, geting in touch with a skilled and experienced domestic violence attorney help you understand the legal nuances involved in changing or terminating that order.

What Is a Domestic Violence Restraining Order in California?

Domestic violence protective orders (also known as restraining orders or stay-away orders) are intended to prevent further harm or harassment to the named protected party. When a court issues a protective order in a domestic violence case, it can impose a range of conditions, including prohibiting personal contact, forbidding electronic contact, excluding the defendant from the protected person’s home or workplace, and requiring a specific distance to be maintained between the defendant and the protected person.

Under California Penal Code Section 1203.097 PC, any individual convicted of a domestic violence offense and granted probation is subject to a mandatory protective order as part of the probation terms. Judges can also issue protective orders according to California Penal Code Section 136.2 during the pendency of a criminal case, meaning the order can be in place even before a person is found guilty or accepts a plea deal.

Defendants must understand the specific terms because the penalties for violating such orders are severe. These may include:

• Direct and indirect contact prohibitions include no phone calls, text messages, emails, social media contacts, or contact through third parties (other than through a defense attorney).
• Stay-away orders require the defendant to remain a certain distance (often 100 yards) from the protected person’s home, workplace, or other specified locations.
• Restrictions on gun ownership and firearm possession which is typical in domestic violence cases. – Required attendance in a certified 52-week domestic violence counseling or batterer’s intervention program if there is a conviction.

Violating a protective order can lead to new criminal charges, often charged under California Penal Code Section 273.6 PC. If convicted, a person may face penalties including jail time, additional fines, or revocation of probation.

Penal Code Sections Governing Protective Orders and Violations

California law contains several code sections relevant to domestic violence protective orders. These include:

• Penal Code Section 136.2: Allows a judge to issue a protective order during the pendency of criminal proceedings to protect witnesses or victims.
• Penal Code Section 273.6: Criminalizes the intentional or knowing violation of a protective or restraining order. A first offense is typically a misdemeanor, but it can be charged as a felony if there are aggravating circumstances or repeat violations.
• Penal Code Section 1203.097: Sets forth mandatory conditions of probation for individuals convicted of domestic violence, including protective orders, mandatory counseling programs, and other requirements.

 A protective order remains in effect until it is set to expire or is modified or terminated by the court. Simply because the protected party decides the order is no longer necessary does not automatically invalidate the order. Until a judge formally modifies or cancels it, both parties must adhere to all restrictions.

How Do Protective Orders Affect Families and Children Involved in Domestic Violence Cases?

Protective orders can place enormous stress on families, particularly when the alleged victim wants to continue living with or having contact with the defendant. Children can be caught in the middle, especially if there is a custody agreement in place. Even when the protected party explicitly states that they want to have contact or resume cohabitation, the presence of a court-issued protective order means that any contact can result in an arrest for the defendant. This highlights why the only sure way to change the terms of the order is to return to court.

What Steps Are Involved in Requesting a Court Modification of a Protective Order?

Either party may seek a modification of the restraining order; however, it is commonly the protected party who desires the change. They may seek to reduce the “no contact” order to a “peaceful contact” order, or they may want the order terminated entirely if they believe reconciliation is possible. When making such a request, the protected party often must file the appropriate motion or request a hearing before the judge who imposed the order (or a judge with jurisdiction over the case).

In a criminal context, especially where the defendant is on probation under Penal Code Section 1203.097 PC, the district attorney will typically weigh in on whether modifying the order is advisable. Judges often want to ensure that the protected person is acting freely and not under duress or coercion. The judge may require:

• The defendant is to complete a certain number of domestic violence counseling or batterer’s intervention classes.
• Proof of compliance with all probationary terms.
• An in-court statement from the protected party expressing that they feel safe resuming contact.

Even if the protected party and the defendant jointly request the modification, the judge is not obligated to grant it. The court has broad discretion to determine whether continuing the protective order is necessary for the protected party's safety.

Sentencing and Domestic Violence Restraining Orders

When a defendant is convicted of a domestic violence offense, sentencing often involves multiple components, including jail time, fines, probation, mandatory counseling, and the issuance (or extension) of a protective order. Under Penal Code Section 1203.097 PC, the court is required to issue a protective order lasting up to 10 years when the defendant is convicted of a qualifying domestic violence crime. The length of the order may vary based on the severity of the offense, the defendant’s criminal history, and the specific circumstances of the case. Sentencing for violating a restraining order can also be severe.

If charged under Penal Code Section 273.6, a first offense is typically a misdemeanor punishable by up to one year in county jail and a fine of up to $1,000. If the violation involves violence, injury, or repeat offenses, it can be filed as a felony, carrying more significant penalties. Further, a violation of a protective order may constitute a probation violation, potentially resulting in the revocation of probation and imposition of jail or prison time.

Relevant Jury Instructions

In California, standard jury instructions (known as CALCRIM instructions) guide jurors in understanding the law. For domestic violence-related charges, the court might use:

• CALCRIM No. 840 (Corporal Injury on a Spouse, Cohabitant, or Fellow Parent) if the defendant is charged under Penal Code Section 273.5.
• CALCRIM No. 841 or 841A for different forms of battery against a spouse or cohabitant, sometimes charged under Penal Code Section 243(e)(1).
• CALCRIM No. 2701 or 2702 (depending on the case) for violation of a restraining order under Penal Code Section 273.6.

These instructions outline for the jury what elements the prosecution must prove beyond a reasonable doubt to secure a conviction. For example, in a violation of a restraining order case, the prosecution must establish that there was a valid court order in place, that the defendant knew about the order, and that the defendant willfully violated its terms. The jury instructions also emphasize that good faith misunderstanding or accidental contact generally does not relieve the defendant of criminal liability if the defendant’s actions were nonetheless intentional.

Common Misconceptions About Changing Protective Orders

Many people believe that if the protected party reaches out first or welcomes contact, it nullifies the order. This is not true. Even if the protected party initiates contact, it can still be a violation for the defendant to respond. Only a court modification can legally change the terms. Another misconception is that a protective order cannot be changed before its scheduled expiration date. In reality, courts frequently consider requests for modification or termination if circumstances have changed significantly or if the protected party no longer feels threatened.

How an Attorney Can Help

If you need to change the terms of a domestic violence restraining order—whether you are the protected party seeking contact or the restrained party hoping to restore your normal family life—consulting an experienced criminal defense attorney is critical. A skilled lawyer can:

• File the necessary motions and paperwork to bring the matter before the court. – Gather evidence or proof of changed circumstances, such as the defendant’s completion of domestic violence counseling, or testimony from the protected party stating they wish to resume contact.
• Communicate with the judge and prosecutor to negotiate an appropriate modification or termination of the protective order.
• Represent you in court hearings and argue why the order should be changed to a “peaceful contact” order or rescinded entirely.

In some cases, a judge may require an in-person examination of the protected party to ensure they are not being pressured or coerced into supporting a modification. An attorney can help ensure that the request for modification is presented professionally and that the protected party’s wishes are conveyed. It is also vital to have legal counsel who understands the local court’s approach and can anticipate questions or concerns from the prosecutor or judge.

Why Choose Kraut Law Group Criminal & DUI Lawyers

At Kraut Law Group Criminal & DUI Lawyers, we understand the difficulties that arise when a domestic violence protective order disrupts your family life. Our founding attorney, Michael Kraut, is a former Deputy District Attorney with over 14 years of prosecutorial experience in Los Angeles. He brings a unique perspective to defending individuals accused of domestic violence offenses and navigating the complex process of modifying protective orders. Our team is well-versed in California’s domestic violence laws, Penal Code Sections 136.2, 273.6, and 1203.097, as well as the relevant CALCRIM jury instructions and sentencing guidelines.

We recognize that every case is unique. In some situations, the alleged victim wants to drop the protective order and immediately reunite with the defendant. In others, the parties simply need a “peaceful contact” order so they can co-parent or handle financial obligations. We tailor our legal strategy to fit your situation and vigorously advocate for your rights in court. Whether you are a defendant facing undue hardship or a protected party seeking to reunite with a loved one, our priority is to present a compelling case for modifying or rescinding the order while ensuring that the court understands your needs and safety concerns.

The Process of Changing a Domestic Violence Restraining Order

When seeking to change or terminate a domestic violence restraining order, the process generally involves:

• Filing a motion or request with the court that initially issued the order.
• Notice must be served to all relevant parties, including the prosecutor, if the case is still pending or the defendant is on probation.
• Attending a hearing, at which point the protected party can express their wishes, the defendant’s progress can be reviewed, and the judge can ask questions to ensure there is no coercion.
• Receiving a formal court order that modifies or terminates the protective order.

 Failure to go through these steps means the original order remains in full force. Thus, if you are a defendant, you cannot rely on informal agreements or a verbal “green light” from the protected party. You need a legally recognized court order that amends or ends the restraining order.

Contact Kraut Law Group Criminal & DUI Lawyers

 If you have questions about changing a domestic violence restraining order in Los Angeles or anywhere in Southern California, Kraut Law Group Criminal & DUI Lawyers is here to help. Our office is located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. We are available 24/7 at 888-334-6344 or 323-464-6453 to discuss your case and explore your options. Domestic violence charges and protective orders can have life-altering consequences.

Whether you are facing a criminal proceeding, are currently on probation, or simply need guidance on how to protect your rights and your family’s best interests, contact our experienced legal team. We strive to resolve these matters efficiently and effectively, while always advocating for the best possible outcome. Your future, your family, and your freedom matter, and we are committed to fighting for you at every stage of the process.