This article will focus on requesting modification of a criminal protective order in a California domestic violence case.
As discussed elsewhere in our articles on domestic violence prosecutions in Los Angeles criminal courts, one important aspect which is somewhat unique to domestic violence cases is the issuance of a criminal protective order against the defendant.
If convicted, California Penal Code 1203.097 requires the court to issue a protective order as condition of probation.
However, protective orders are also typically ordered even when the domestic violence charges are pending.
A protective order in domestic violence cases often creates an extreme hardship in a family as a spouse is prohibited from making any type of contact.
When a defendant appears in court for their arraignment, they are formally served with a copy of the protective order and the terms are read.
The defendant is not allowed to make contact with the protected party, including using a third party, text messages, email, or other electronic communication. However, in some cases, the judge will allow peaceful contact.
Violating the terms of a protective order is often carries harsh consequences and could even be considered a probation violation.
It's not uncommon for the protected person to want the change the terms of the protective order or have it terminated completely. If you are seeking to change the terms of a protective order, contact our Los Angeles domestic violence lawyers for more information.
To give readers a better understanding on how to change a domestic violence protective order, our California criminal defense lawyers are providing a detailed review below.
Types of Domestic Violence Protective Orders
These orders can take several forms. The strictest and most common version of the criminal protective order is a full stay-away and full no-contact order.
This version of the order prohibits the defendant from having any contact in any form with the protected persons, which include the alleged victim or victims of domestic violence but can also include others such as minor children who may have witnessed the alleged domestic violence.
Particularly when a defendant appears for the first time on a domestic violence accusation and the court has no input from the alleged victim either in person or through victim's counsel, the common practice is to issue a full stay-away order.
This can be hugely disruptive for a defendant's life. It may necessitate the defendant moving out of the shared home with the alleged victim, being denied access to children which the defendant has in common with the alleged victim, and being forced to spend significant sums of money to secure new housing or face homelessness.
For this reason, defendants often seek modifications of the criminal protective orders issued in domestic violence cases by the criminal court.
Modifying the Terms of a Protective Order
In many cases, the protected party named in the protective order wants to have the order charged to allow contact with the defendant.
They might want to make an attempt to reconcile their relationship or have peaceful contact to allow for the defendant to spend time with their children.
One of the most common bases for modifying a criminal protective order is the issuance of a visitation and/or custody order by a family or a dependency court.
These civil courts have expertise in family reunification and delve into the details of the allegedly abusive relationship much more deeply than the criminal court does.
For this reason, many criminal court bench officers will defer to the judgment of family or dependency courts on the issue of peaceful contact between a defendant and alleged victim if this contact is necessary for peaceful exchange of minor children which the parties have in common.
The criminal protective order forms used in criminal courts have a box which can be checked for this specific purpose, as it is a common request from the defendant in a criminal domestic violence case.
Peaceful Contact Order
In other cases, the alleged victim might be represented by counsel who wishes to advocate for an even more permissive protective order known simply as a peaceful contact order.
Under this least restrictive version of a domestic violence criminal protective order, the defendant is permitted to have any amount of contact they wish with the alleged victim, provided that said contact is “peaceful,” meaning the defendant may not strike, assault, threaten, molest, stalk, or otherwise harm or threaten to harm the alleged victim in any way.
Threats which are communicated through third parties rather than directly by the defendant would also violate a peaceful contact order.
Prosecution Request to Modify Protective Order
Just as the defendant can petition the court in a domestic violence case to modify a previously issued criminal protective order, so too can the prosecution request a modification if changes in circumstances justify such a request.
In most cases, this would occur where the defendant previously convinced the court to issue a more lenient criminal protective order.
This would include a peaceful contact order or a contact for exchange of the shared children order, but has either violated the terms of the order or engaged in other concerning conduct which justifies increasing the level of restriction.
The court will evaluate such a request from the prosecution and, if necessary, increase the level of restriction in the criminal protective order to a full stay-away or no-contact order.
It should further be noted that violation of a domestic violence criminal protective order is in of itself a crime, usually prosecuted as a misdemeanor.
Potentially even more serious for the defendant, violation of such an order is also a violation of the conditions of bail.
In felony domestic violence cases, the defendant typically is required to post $50,000 or more in cash bail to secure their release from custody. If bail is revoked for violation of the criminal protective order, this bail is likely to increase dramatically.
Los Angeles Domestic Violence Attorney
In order to have a protective order changed or terminated, both parties will need to return to court to ask the judge formally change the terms of the order.
If a defendant is on probation, the judge will usually want to hear directly from the protected party to make sure they want to change the terms and not under any type of duress or coercion.
If you, or someone you know, is facing domestic violence charges and is subject to, or is likely soon to be subject to, a criminal protective order issued by the criminal court, contact our experienced team of Los Angeles criminal defense attorneys for an initial consultation.
We have experience in advocating for both defendants and victims in matters concerning domestic violence criminal protective orders.
Eisner Gorin LLP is criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067 and next to the Van Nuys Court at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our office to review the details of your case at (310) 328-3776.