An unpublished opinion out of Place County provides important information regarding what is required at a domestic violence hearing before the Court renews a permanent domestic violence restraining order.
Mother applied for the renewal of a restraining order against father. During a short cause hearing the Court denied father's counsel's request for an evidentiary hearing. No oral testimony was allowed at the hearing. Relying only on the arguments of counsel and the written motion filed by wife, the trial court renewed the restraining order. Father appealed, and won. The Court of Appeals writes:
Renewal of DVPA restraining orders is governed by section 6345. The statutory construction of section 6345 was addressed in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie). Ritchie involved an order granting renewal of a DVPA restraining order. The appellate court reversed the renewal of the restraining order on grounds that the trial court erroneously concluded that renewal was required upon mere request of a protected party. (Id. at p. 1284.) Ritchie held that when the restrained party contests the extension, “[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.” (Id. at p. 1290.). . . .
Even so, the restrained party is entitled to adduce evidence addressing whether there are “significant changes in the circumstances surrounding the events justifying the initial protective order. 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? Or have there been no significant changes or even perhaps changes that enhance the opportunity and possibility of future abuse?” (Ritchie, supra, 115 Cal.App.4th at p. 1291.)
In presenting evidence to oppose renewal of a DVPA restraining order, the trial court may not bar the restrained person from introducing witness testimony. (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865 (Ross).) The Ross court reversed the renewal of a DVPA restraining order after the restrained person was not given the opportunity to adduce oral testimony prior to the renewal. (Id. at pp. 865-866.) As the Ross court explained, the lack of an evidentiary hearing with oral testimony failed to comport with the restrained person’s due process rights. (Ibid.) Because Ross involved the informal proceedings often conducted when all parties are self-represented, the appellate court admonished that “the referee should have advised [respondent] he could provide oral testimony . . . .” (Id. at p. 866.) As the Ross court noted, respondent “certainly could have testified himself and raised questions to be posed to Ross, had the referee advised him of his right to do so.” (Ibid.)
Here, both mother and father were represented by legal counsel who acted zealously to protect the rights of their clients. Nonetheless, father’s due process rights entitled him to an evidentiary hearing in which he could present oral testimony and documentary evidence in opposition to mother’s renewal request. [emphasis added] (Ross, supra, 139 Cal.App.4th at p. 866.)
The appellate court makes clear:
When a party is entitled to an evidentiary hearing, a court may not substitute declarations for the testimony of witnesses. As the California Supreme Court noted, in a case in which the trial court “called for the admission of declarations in lieu of direct testimony at trial,” “[i]t is well established . . . that declarations constitute hearsay and are inadmissible at trial . . . .” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 (Elkins).) As the Elkins court went on to explain, “Permitting oral testimony rather than relying upon written declarations also is consistent with the historically and statutorily accepted practice of conducting trial by means of the oral testimony of witnesses given in the presence of the trier of fact. (See Evid. Code, §§ 711, 780; Code Civ. Proc., §§ 2002, 2005.) . . .
The Court of Appeals then order the case back to the trial court for a full evidentiary hearing.
Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.
 In pertinent part, section 6345 provides: “(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 any 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. [¶] (b) Notwithstanding subdivision (a), the duration of any orders, other than the protective orders described in subdivision (a), that are also contained in a court order issued after notice and a hearing under this article, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects.”