By: Jessica A. Saldin
If you are faced with a permanent protection order, it is not uncommon for one of the first questions you ask yourself to be, “is this restraining order truly permanent or can it ever be modified or terminated?” As a point of clarification, this blog only addresses civil protection/restraining orders. Protection orders entered as part of a criminal case, typically known as Mandatory Restraining Orders (or “MROs”), are governed by a different statute and are outside of the scope of this post. While MRO’s will often include the terms or conditions that must be met before such an order is lifted, there are no such provisions with civil restraining orders. The civil restraining order is simply entered and is captioned as a “permanent.” Regardless of the “permanent” label, the restrained party may not be faced with a perpetual order than can never be modified or lifted. Colorado statute does make provisions for modifying civil restraining orders, under certain conditions.
If you are the protected party, you may ask that the terms of the protection order be modified or that the order itself be completely dismissed at any time. If it is the restrained party seeking a modification or dismissal of the order, though, the standards are much higher. First, a restrained party cannot seek a modification of the protection order or a dismissal of the protection order for at least two years after the most recent order in the matter. In other words, once the protection order is entered, the restrained party cannot seek a modification or dismissal for at least two years. If such is requested, and it is denied, the restrained party cannot make such request again for at least another two years. The exception to this is if the restrained party has been convicted of, or pled guilty to, any misdemeanor or felony (other than any original offense that formed the basis for the protection order request). If this occurs, the restrained party loses any legal basis on which to ever request a modification or dismissal of the restraining order and, thus, it is truly permanent.
If the two year period from the last order has passed, and there were no misdemeanor or felony convictions or guilty pleas, the restrained party may request a modification or termination of the protection order. To do so, in addition to the motion filed requesting the modification or termination, the restrained party must also provide the results of a fingerprint-based criminal history record check, conducted within ninety days of the filing of the motion, which includes a review of both the state and federal criminal history records (those maintained by both the Colorado Bureau of Investigation (CBI) and the Federal Bureau of Investigation (FBI)).
After filing the motion for modification or termination, the party filing such must personally serve the other party with a copy of the motion and the notice of hearing regarding the motion. At the hearing, the party requesting the modification or termination has the burden to prove that the relief requested is appropriate because the protection order is no longer necessary. In deciding whether to modify or dismiss the protection order, the court is to consider several factors, including, whether the restrained party complied with the terms of the protection order and has met all conditions (if any) associated with the protection order; whether the restrained party has been ordered to participate in and has completed any treatment (like a domestic violence treatment program by an approved entity) or has voluntarily participated in such treatment; the time elapsed since the protection order was issued; when the last incident of abuse or threat of harm occurred; whether any other restraining orders or other protective orders have been subsequently issued against the restrained person; the circumstances of the parties (including distance between homes, work places, etc.); and whether the protected party’s continued safety depends upon the order remaining in place because it has been successful in preventing further harm to the protected party.
Thus, before a restrained party should file a motion to modify or terminate a protection order, it is very important to show a sufficient lapse of time between the issuance of the order and the filing, and that circumstances have clearly changes such that they can meet the criteria stated above. Ultimately, it is an uphill battle to get a protection order modified or dismissed as the restrained party because, even if you can show no protection order violations, the last factor for the court to consider can allow the court to determine that, regardless, the protection order has maintained the protected party’s safety and should remain in place. Therefore, it is very important to be able to prove, before proceeding with any motion, why the protection order is not necessary because, if you do not prevail on that motion, you have to wait at least another two years before trying again.
Court’s take protection orders seriously, and so do I. When assessing whether a motion to modify or dismiss a protection order is viable, I believe in scrutinizing the situation is warranted, as I know the court certainly will. Finally, it should be noted that each case is different and that in many instances it is going to appropriate to keep a restraining order in place. Whether you’re seeking to alter a restraining order, or have been served with a motion to dismiss one, it’s advisable to consult with a restraining order attorney.
