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Modification or Termination of a Criminal Protective Order?
In domestic violence cases, the judge will issue a criminal protective order during the pendency of the case (up until the conviction) and then a new, further criminal protective order for the period of probation or even longer after the conviction.
Defendants and victims often call us and ask whether the judge will modify it to permit the defendant and victim to communicate regarding children, to live together again or to simply attend marriage or couples counseling together. Sometimes, when the victim or defendant moves out of the house, he or she has no where to go (especially if the couple is from outside the United States) and must take up residence in a hotel or live in one’s car.
Our answer to this re-occurring question is that a court may consider modifying the protective order to allow peaceful contact between the parties, but each case is scrutinized for its facts and the prosecutor usually is averse to anything that might endanger the victim.
About This Article Briefly: Five days of advance notice is required to be given to the prosecutor if defendant seeks to modify or terminate a criminal protective order in a domestic violence case. Defendant should also read the list of considerations in the following article to anticipate what may be presented at the hearing.
Penal Code § 12033(b)(1) requires a full five days of notice to the prosecutor if the request is to modify or terminate a protective order in a case involving domestic violence. This allows the prosecutor time to make a few phone calls to the victim to informally, without a judge or a family listening in, determine if the victim is being pressured or threatened to request the change. The prosecutor will want to evaluate what is motivating the requested modification.
Torrance CourthouseWhen the actual hearing takes place to modify the protective order, the judge will want to consider (and defendant should anticipate these considerations):
- Is there a material change in circumstances that is motivating the request, i.e., if a grandmother or mother-in-law provided childcare services, did that person pass away or move away?
- Is the victim really the person who the police report states is the victim? Does she or he have identification to confirm this?
- What is the nature of the underlying offense? Was it a serious incident or was it just part of a cycle of abuse or was it an isolated incident attributable to a non-re-occurring event?
- Does the criminal protective order depend upon a family court protective order’s restrictions? If so, the victim or defendant really should also address the requested modification or termination to the family court judge. The judge may also clarify for the victim or defendant that the family court order controls the contact if this is so.
- What is the reason for the request? Childcare? Lack of alternative housing?
- Is the victim being threatened or coerced? Is defendant’s family or friends also in court to pressure the victim?
- Is the victim participating in domestic violence victim support groups? If not, why not? If the victim does not speak English, is the victim aware that there are support groups in a variety of non-English languages? Has she or he participated in such groups? Why not?
- Does the victim have a “safety plan” to improve personal safety? Does the victim know who to call if a problem arises? Does he or she have the phone number saved in his or her phone already? We mention this particular area of inquiry because it is often addressed in such a hearing.
- Is defendant participating in a batterer’s intervention program? If so, how many classes has he or she attended? Has he or she missed any classes and if so, how many? We mention this because we often see judges require that defendant attend ten such classes before modifying the protective order. Ten classes at the rate of one per week takes over two months.
- What will the impact on children be if renewed contact is permitted? Was one of the children the reporting party? Did the children witness the domestic violence? How old are the children and how many are there? Are there other adults living in the house? Has defendant taken any parenting classes?
- If alcohol or narcotic use was involved in the underlying incident, is defendant attending alcoholics or narcotics abuse counseling?
- If renewed contact is allowed, is such contact only telephonic because defendant is in prison or jail? Has defendant been deported, moved to another country or another state permanently?
For more information about protective orders, please click on the following articles:
- I Face a Civil Restraining Order for Domestic Violence and a Criminal Charge of Domestic Violence – What Should I Do?
- Criminal Protective Order in Domestic Violence Case Is Improper When It Bars Father from Contacting His Kids, Who Were Not Victims in the Case.
- Can a Criminal Protective Order Cover Non-Victims?
