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February 25, 2021

New Test for CPO Extensions Means More Barriers for Survivors


Protection orders provide critical legal protections to survivors of family violence through a range of relief designed to meet the survivor’s safety needs. However, often the length of a protection order is relatively short-only one year in D.C. (although recent legislation was passed that will increase the length to two years)-so most jurisdictions give survivors the ability to extend their protection order under certain circumstances. Those circumstances, as well as the length of the extensions, vary widely among states. For example, DV LEAP recently filed an amicus brief in Illinois to support the indefinite extension of a survivor’s protection order, whereas in Alaska we filed amicus brief on behalf of a survivor who was denied an extension even though the abuser’s behavior clearly indicated that he remained a threat to her safety. Under D.C.’s statute governing civil protection orders (CPOs), the Intrafamily Offenses Act, a CPO can be extended for one year if a survivor can show “good cause”; the statute doesn’t define what “good cause” means. This summer, the D.C. Court of Appeals (DCCA) clarified the “good cause” standard by establishing a two-part test. Unfortunately, that test makes it more difficult for survivors to extend their CPOs and maintain potentially life-saving protection.

DV LEAP worked with The Legal Aid Society of DC’s Appellate Division as amicus to challenge the DCCA’s ruling in Ramirez v. Salvattera, 232A.3d 169 (D.C. 2020), which created the two-part test. Unfortunately the DCCA rejected the challenge and, as a result, these additional barriers to CPO extensions have been embedded into DC law. 

Prior to this ruling, it was left to trial courts to assess whether good cause existed based on the evidence before them and then, if challenged, to the DCCA to determine whether the trial court’s assessment was sound. Cases interpreting the “good cause” standard for extensions had developed a partial roadmap: requiring trial courts to consider the entire “mosaic” of the parties’ past relationship rather than just the incidents underlying the CPO and extension request; positing a possible ground for “good cause” as “some cognizable danger of recurrent violation”; and adding a “balance of harms” analysis that requires consideration of the respective harms to the survivor and respondent from granting or denying the extension request. This caselaw guidance left ample room for trial courts to grant CPO extensions that furthered the statute’s remedial purpose to ensure survivor safety and well-being.  

The two-part test that now governs CPO extensions severely restricts survivors’ access to continued safety and well-being. In creating the test, the DCCA relied in part on the concern that the then-current law could give survivors illicit access to an essentially permanent injunction against their abusers by simply returning to court to obtain an extension every year. (There is no indication that this has been a problem or ever actually happened.) Accordingly, the DCCA established, as a precondition for obtaining a CPO extension, that the survivor show a ‘cognizable danger that the [abuser] will commit or threaten to commit a criminal offense against the [survivor] in the coming year.” In other words, survivors must now demonstrate a likelihood that their abusers will commit a crime against them within the next year in order for a trial court to even consider granting an extension of the CPO. What it will take to demonstrate this likelihood of a future criminal act has yet to be seen, but there is no question that this is a higher and more difficult standard than previously existed under DC CPO extension cases. The opinion turns its back on the established purpose of CPOs to protect a survivor’s peace of mind in addition to physical safety, the impact of ongoing trauma the survivor might be experiencing from the abuse that resulted in the initial CPO, and the difficulty of proving the abuser will commit a crime, particularly if the CPO has succeeded in its purpose to protect the survivor while in place. Moreover, even if a survivor is able to meet this heightened standard, s/he must satisfy the second part of the test by also showing that any harm the survivor will suffer if the extension is denied is outweighed by the harm to the abuser if the extension is granted.  

As a result, successful protection from an abuser’s threats or violence during the period of a CPO—an indicator that the CPO is working as intended—will now impede the survivor’s ability to obtain an extension under the new law.  Based on DV LEAP’s work on this issue in other jurisdictions, DC law on this issue is now significantly less protective of survivors than in many other states. This is a sad development for the first jurisdiction to pass a protection order statute and runs directly counter to DC’s strong legislative history of expanding these important protections for survivors.

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