Yost v. Forestiere: Restraining OrdersYost v. Forestiere: Restraining OrdersWalzer Melcher LLP
Bailey Yost v. Anthony Forestiere
California Court of Appeal, Fifth District
Published Opinion (06/30/2020) 51 Cal.App.5th 509
Mother filed a civil restraining order against paternal grandparents requesting she and the minor child be protected. The trial court issues a restraining order against grandfather and denies his motion for reconsideration. Father is later awarded joint legal and physical custody so paternal grandfather filed a motion to modify the restraining order so he could spend time with his grandchild. The trial court denied his motion and grandfather appeals.
The Civil Code of Procedure section 527.6 allows for the modification of civil harassment restraining orders upon motion of one of the parties, but does not specify the grounds for modification. Grandfather’s counsel argued that the code allows for modification at the court’s discretion and does not require a showing of a substantial change in circumstances.
In the published portion of this opinion, the court interprets the statute and holds that (1) CCP 527.6 grants the trial courts discretionary authority to determine whether to modify or terminate a civil harassment restraining order; (2) a trial court’s discretion to modify a civil harassment restraining order includes, but is not limited to, the three grounds articulated in section 553. Those grounds are (a) a material change in the facts, (b) a change in the law, or (c) the ends of justice; (3) a trial court has the discretion to modify the terms of a civil harassment restraining order addressing a particular act of harassment that it determines is not reasonably likely to occur in the future; (4) a party requesting a modification of a civil harassment restraining order has the burden of proving by a preponderance of the evidence that a particular act of harassment will not occur in the future; and (5) a trial court was required to consider circumstances at time a restraining order was issued as compared with the circumstances at time of modification motion.
Opinion: Yost v. Forestiere 6-29-20
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