The unquantifiable standard for DV restraining order renewals

What is a reasonable apprehension of future abuse, and how is it quantified? In baseball, there is an adage that "it all looks the same in the scorebook." What that means is whether it is a hard-hit line drive or a bunt, they both appear the same way in the official scorer's book, a hit (officially, a line drawn from home plate to first base). Exit velocity, launch angle, and distance the ball traveled are irrelevant to the official scorer. The same is true once a domestic violence restraining order is issued. They all look the same on paper because the Restraining Order After Hearing (DV-130) does not have a place for the severity of domestic violence. It is all just domestic violence. A single incident looks identical to years, or decades, of physical and emotional violence on the DV-130. So when a renewal is requested, how does one person's fear reach a level that an average person (the "reasonable person") would feel the same way given the same facts and circumstances?

Consider this hypothetical: X and Y were married for almost twenty years and have two children, fourteen and fifteen years old. As the marriage started to dissolve, the parties, who had previously tried to remain civil for the children's sake, grew more hostile towards each other. Their arguments became more frequent and pronounced with yelling, name-calling, and expletives, with the children often present. After one significant argument, X grabbed Y by the arm to prevent Y from leaving the room in which they were arguing. Y's balance was lost in trying to break free, and Y knocked over a glass-top table, causing it to crash to the ground and shatter. Y also fell to the floor, lying in the shards of glass. The children came running to find X menacingly standing over Y, yelling. Seeing the children, X quickly went to X's room, packed a bag, left the residence, and never returned. Y has scars on Y's arm and leg from the cuts. The police were never called.

Along with immediately filing for divorce, Y also sought a Domestic Violence Restraining Order (DVRO). X did not contest the DVRO, and a five-year protective order was issued. As part of the DVRO, an agreement of child custody and a visitation plan was reached between the parties, and X had regular visitation with the minor children. The parties communicated through an online messenger regarding the minor children. Approximately two years in the DVRO, X's job was transferred to Northern California. X and Y reached a new agreement for visitation, and the children often flew to visit X with the parties communicating about flight scheduling and holidays.

Three months before the expiration of the DVRO, Y files to have it renewed permanently. Y states that Y reasonably fears future abuse if the DVRO is not renewed. At the hearing on the renewal, Y testifies that Y is still afraid of X. Further, since X is paying spousal support, X fears his conduct without the DVRO in place will return to what it was during the marriage. Y also says they will see each other at the children's events. X opposes the renewal. X argues that the children are no longer minors and graduations and other events will be rare. X has lived 500 miles away from Y for three years without face-to-face contact. Further, the spousal support is garnished directly from X's wages and is a relatively nominal monthly amount compared to his monthly salary. The parties had no issues communicating regarding the children until they aged out, and there have been no violations of the DVRO since it was issued.

Is Y's apprehension of future abuse reasonable? How should the Court rule?

Renewal of Restraining Orders

Family Code, Section 6345, provides that "(a) 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 with the Court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years or permanently*, without a showing of further abuse since the issuance of the original order, subject to termination or modification by further order of the Court either on written stipulation filed with the Court or on the motion of a party." Courts should broadly construe the Act to accomplish its purpose of preventing acts of domestic violence. (See In re Marriage of F.M. & M.M., 65 Cal.App. 5th 106, 115 (2021); In re Marriage of Nadkarni, 173 Cal.App.4th 1483, 1498 (2009).)

Any request to renew a protective order "may be brought at any time within the three months before the expiration of the orders." (Section 6345(a)).

What is reasonable apprehension?

In Ritchie v. Konrad, 115 Cal.App.4th 1275 (2004), the Court first addressed the burden of proof in a request to renew a protective order. As in most of my articles, the answer to that question is...it depends.

In Ritchie, the Appellate Court noted that the trial court "evidently read the statute to mean a party is entitled to an extension of the original order - even a permanent extension - if he or she files a request for this relief. Indeed as the exchanges quoted above from the hearing reveal, when Konrad's counsel asked the basis of the trial court's extension order, the judge replied: "I think they're entitled to it just upon request." The Appellate Court agreed with this presumption with a crucial caveat "In this court's view, a protected party such as Ms. Ritchie indeed would be entitled to a renewal of the protective order merely upon request, if that request were not contested by the restrained party." (Id. at 1284.) The Act of applying for the renewal satisfies the protected party's burden of proof that a reasonable apprehension of future abuse remains. "In that instance, both the protected party and the court are entitled to assume the restrained party has a good reason for not objecting." (Id.) However, in Ritchie, the request for renewal was contested, and, in that instance, the Ritchie Court concluded that "the protected party is not entitled to a renewal merely because she (or he) desires one." (Id.)

The Court stated that "Section 6345 does not provide the trial court shall automatically renew the existing protective order if the protected party requests. By its terms, section 6345 only states the trial court may do so in the proper exercise of its discretion. In this Court's view, that exercise of discretion requires an inquiry beyond whether the protected party requested a renewal and entertains a subjective desire the protective order continue." (Id.) The protected party does not need to show further acts of abuse to demonstrate the initial DVRO was ineffectual and thus the necessity for an extension. The presumption is that the order was effective and prevented any further acts of abuse, which is the rationale for the extension. (Id.)

The Ritchie court then discussed different standards adopted to extend a protective order. Referring to a Missouri statute and case law, the Court found the Missouri standard of "imminent and present danger of abuse" to be a high standard to prove. In essence, they require proof that domestic violence would imminently occur but for the current order, which prevents the violence from occurring and thus the need to renew it. (Ritchie, supra, 115 Cal.App.4th at 1287-1288.) The Ritchie Court also looked at Ohio, which holds "the court can issue an order renewing a protective order if it finds a preponderance of the evidence supports a finding a petitioner or a petitioner's family or household members are simply in danger of being the victims of domestic violence." (Emphasis in original) (Id. at 1288.) The Court also looked at Utah's standard, which requires a "'substantial likelihood of abuse or domestic violence as equating to a present fear of future abuse.' It then emphasized this 'present fear' must be 'reasonable and real.'" (Id. at 1289) After weighing the different standards the Court stated, "[w]e conclude that in California, as in the rest of the country, an objective test must be satisfied before a protective order is renewed in contested cases." (Id. at 1290.) However, a trial court cannot extend or renew a domestic violence protective order "based solely on the protected party's mere desire for such an extension or her (or his) subjective fear or apprehension future abuse will occur should the existing order expire." (Emphasis in original) (Id. at 1289.)

A protective order should only be renewed "if, and only if, it finds by a preponderance of the evidence that the protected party entertains a "reasonable apprehension" of future abuse. So there should be no misunderstanding, this does not mean the Court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (Ritchie, supra, 115 Cal.App.4th at 1290.) In coming to that determination, a court "should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire." (Id.) In other words, a risk assessment of future abuse based on the nature, extent, and type of violence that precipitated the original protective order.

In weighing its decision for renewal, the Court should also consider whether there are "significant changes in the circumstances surrounding the events justifying the initial protective order." (Ritchie, supra, 115 Cal.App.4th at 1290.) As stated in Ashby v. Ashby, 68 Cal.App.5th 491, 511 (2021), "for instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?" As well as if there have been any intentional violations of the existing protective order. (See Lister v. Bowen, 215 Cal.App.4th 319 (2013)) However, a renewal of a protective order cannot be denied solely because there were no violations of the protective order. (See Eneaji v. Ubboe, 229 Cal.App. 4th 1457, 1464 (2014).)

However, the trial court should not permit the restrained party to challenge the truth of the evidence and findings underlying the initial order. (See In re Marriage of Martindale & Ochoa, 30 Cal. App.5th 54, 60 (2018)). A trial court is also not prevented from considering "the 'burdens' the protective order imposes on the restrained party - may or may not be a relevant factor in the trial court's consideration of a contested request for renewal of a protective order. Certainly, those burdens would never justify denial of a renewed protective order where the "reasonable apprehension" is of future acts of physical violence." (Emphasis in original) (Ritchie, supra, 115 Cal. App.4th at 1291.)

In In re Marriage of Brubaker & Strum, 73 Cal.App.5th 525 (2021), the Court faced the issue of issue preclusion concerning the renewal of a protective order. In Strum, as part of the dissolution action regarding custody and visitation, the family law court considered "whether Strum 'committed further acts of domestic violence' in connection with the Court's analysis of whether Strum rebutted the presumption under section 3044." (Id. at 539.) The dissolution court concluded that Strum had not committed acts for further domestic violence and had complied with the terms of the protective order after it had been issued. In the hearing for her protective order renewal, Brubaker sought to admit evidence regarding violations of the protective order from 2018 to 2019 (the period covered by the prior finding above). Strum objected to the admission of any evidence of violations of the protective order based on the above ruling. (Id. at 539.) The trial court found that issue preclusion applied based on the prior finding. The Appellate Court reversed that decision finding that "the issue the family law court heard in February 2019 and decided in July 2019 was whether Strum rebutted the presumption under section 3044 that giving him sole or joint custody of the children was detrimental to their best interest. The issue the trial court heard and decided in July 2020 in ruling on Brubaker's request to renew the restraining order was whether Brubaker had a reasonable fear of future abuse. Those issues were very different." (Id.). The Court found that "by excluding relevant evidence of Brubaker's fear of future abuse, the Court abused its discretion by limiting Brubaker's ability to meet her burden of proof." (Id. at 541.)

Turning back to our hypothetical: Y argues that Y continues to have trauma from the incident and is reminded daily from the scars Y has from the injuries Y suffered. X claims that it is not reasonable. Their interactions, if any, would be minimal. They live 500 miles apart, and over the past five years, there have been no violations, including dealing with child visitation issues.

So should the Court renew the protective order? It depends...

Editor's note: *Section 6345 has been amended, effective Jan. 1, 2023. The amendment now allows a trial court the discretion to issue a protective order renewal for any period of time in excess of five years or permanently. Additionally, the language now clears up ambiguity about the ability of a court to issue multiple renewals to a domestic violence restraining order. The relevant changes now read, "(a) ... These orders may be renewed, upon the request of a party, either for five or more years, or permanently, at the discretion of the Court, without a showing of further abuse since the issuance of the original order. Renewals and subsequent renewals shall be subject to termination, modification, or subsequent renewal by further order of the Court either on written stipulation filed with the Court or on the motion of a party." (Italics added)

In re Marriage of Brubaker & Strum, multiple bench officers heard different portions of the case. One bench officer heard the original DVRO; another heard the testimony to rebut the 3044 presumptions, and the third heard Brubaker's renewal request.