A Court Can Deny a Temporary Restraining Order Even When There is Evidence of Past Abuse In Some Circumstances
A recent appellate case makes it clear that even where there is past abuse, the Court can reasonably conclude that a Temporary Restraining Order may not be necessary to protect the petitioner. In re the Marriage of A.M. and R.Y. A.M., Appellant, v. R.Y., Respondent. D084344.
If the Court determines that a restraining order is not necessary to prevent abuse, it is required to include in the order the reasoning for denying the restraining order. The court will carefully consider the seriousness of past abuse, whether it was an isolated incident or a pattern, the likelihood of recurrence, the nature of the parties’ relationship, the immediacy and seriousness of any threat, any changed circumstances, and any other relevant factors.
In a recent appellate case, the trial court denied a temporary restraining order against an ex-husband. The Petitioner alleged psychological, verbal, and emotional abuse. The trial court denied the DVTRO request the same day the Request for a TRO was filed.
On appeal, the appellate court found that the petitioner’s evidence was sufficient for the court to grant the TRO under the DVPA. However, the appellate court determined that the trial court retains the discretion to deny a DVTRO, even with a facially adequate showing of past abuse, if it concludes based on the totality of circumstances that a DVTRO is not necessary to prevent further abuse pending a noticed hearing.
What Did We Learn From This Case?
“Even when a DVRO petitioner has made a facially adequate showing of past abuse on the papers, the trial court still has discretion to conclude that the circumstances do not pose enough of an immediate threat to warrant ex parte relief pending a noticed hearing.”
Pertinent provisions of the DVPA do not compel the trial court to grant a DVTRO whenever the petitioner has made a sufficient showing of past abuse.”
The trial court can deny a DVTRO based on the totality of circumstances even if the petitioner has made a facially sufficient showing of abuse within the meaning of the DVPA.”
“A trial court has discretion to deny a DVTRO to a petitioner who has made a prima facie showing of past abuse if it reasonably concludes based on the totality of circumstances that a DVTRO is not necessary to protect the petitioner or others for whom the petitioner is seeking protection from further acts of domestic violence pending the noticed hearing.”
The Court must affirmatively state its reasons for denying the TRO.
Judicial discretion to grant or deny an application for a protective order is not unfettered. The scope of discretion always resides in the law applied by the court, i.e., in the legal principles governing the subject of the action. Even when a DVRO is involved, and a petitioner has made a facially adequate showing of past abuse on the papers, the trial court still has discretion to conclude that the circumstances do not pose enough of an immediate threat to warrant ex parte relief pending a noticed hearing. The court, however, is required to state why the TRO is being denied when the request for the TRO, on its face, shows past acts of abuse.
If you need restraining or are defending against one, you need an attorney who understands the statutory framework and relevant case law to advocate for you. Livingstone Law has litigated more than 100 restraining orders, from 20-minute hearings to three-day trials. If you need an attorney, contact livingsteonlawsd.com for a free consultation.
