Yes, but first identify which problem you have. Defending a violation charge on the ground that you never knew about the order is one process, and asking the court to end or change the order itself is another. Either way, the order stays in effect and must be followed until a court changes it.

If you are accused of violating the order

“I was never formally served” is not automatically a complete defense to a violation charge. For arrest purposes, a restrained person is treated as having notice of the order if the protected person shows the officer proof of service, the officer confirms a true copy of the proof of service is on file, or the restrained person was present at the protective order hearing or was told the order’s contents by a peace officer (Penal Code section 836(c)(2)). The last two do not depend on paper service at all.

Notice can also be given on the spot. If a law enforcement officer determines that an order has been issued but not served, the officer must tell the restrained person its terms and where to get a written copy, and that verbal notice “shall constitute service of the order” and is sufficient notice for a prosecution under Penal Code section 273.6 (Family Code section 6383(e)).

A conviction still requires an “intentional and knowing violation” (Penal Code section 273.6(a)). Under the jury instruction for this charge, CALCRIM No. 2701, the prosecution must prove you knew of the order, and on request the jury is also told that the prosecution must show you had the opportunity to read it or otherwise become familiar with what it said, though not that you actually read it. So the real question is what you knew and when, not only whether paperwork reached you, and the answer depends on what happened at the scene, at any hearing, and in the service records.

If you want the order itself ended or changed

This is a separate question from defending a pending charge. For a domestic violence restraining order issued after notice and a hearing, the personal conduct, stay-away, and residence exclusion orders remain “subject to termination or modification by further order of the court,” on written stipulation or on the motion of a party (Family Code section 6345(a)). The mandatory statewide form to ask a judge to change or end a domestic violence restraining order that is still in effect is Judicial Council form DV-300. Either the protected person or the restrained person can file it, and there is no court fee (DV-300-INFO). You explain your reasons on the form, which can include that you never had notice of the hearing that led to the order. The other side must be served, and if you are the restrained person, the judge cannot end or change the order until the protected person has been properly served and there has been a hearing.

DV-300 is limited to those orders. DV-300-INFO says not to use it for a temporary restraining order, and an order from a different kind of case, such as a criminal protective order, needs a different request.

Until a judge actually grants your request, the order remains enforceable regardless of what either party does, and can be changed only by court order (Penal Code section 13710(b)). Treat the order as binding while your request is pending.

If the order has the wrong name or details

An order that misidentifies you (a misspelled name, a wrong birth date, or details that match someone else) raises a related but different question: whether the order actually names and binds you. Do not resolve that on your own by deciding the order does not apply to you. Raise it with the court that issued the order, bring the order and documents that establish your identity, and follow the order until the court acts.

What to gather first

  • A copy of the actual order, and any proof of service or return of service on file with the court.
  • Whether you were present at the hearing that issued the order, since presence alone can count as notice.
  • Whether any officer ever told you the order’s terms, in person or over the phone, and when.
  • Whether your problem is a pending violation accusation, a wish to end or change the order, or both, since the two require different paperwork and deadlines.

If you are dealing with a violation accusation, a related contempt charge, or you want to ask the court to end or change an order you say you never had notice of, the Law Offices of David S. Chesley can review the order, the service records, and your options. Call (800) 755-5174.