BILL ANALYSIS                                                                                                                                                                                                    

                           SENATE JUDICIARY COMMITTEE
                        Senator Ellen M. Corbett, Chair
                           2007-2008 Regular Session

          SB 353                                                 S
          Senator Kuehl                                          B
          As Introduced
          Hearing Date: March 27, 2007                           3
          Family Code                                            5
          BCP:rm                                                 3

                  Domestic Violence Protective Orders: Animals


          This bill would allow a court, upon a showing of good  
          cause, to include a grant of care, custody, or control over  
          an animal in a domestic violence protective order.  This  
          bill would also allow the court to order the respondent to  
          stay away from the animal, and forbid the respondent from  
          abusing or otherwise disposing of the animal.


          Despite numerous beneficial legislative measures, domestic  
          violence remains a significant problem affecting an  
          estimated one in four families.  In 2005 alone, the  
          California Department of Justice reported that California  
          law enforcement agencies received 181,263 calls for  
          domestic violence, 93,027 of which involved weapons.   
          Furthermore, the California State Domestic Violence  
          Interagency Collaboration's fact sheet on domestic violence  
          states that:

               Domestic Violence impacts many facets of our  
               society including the health care system, the  
               economy, the welfare system, immigration, and  
               housing. The impact often translates to an undue  
               fiscal burden such as the health care costs, lost  
               wages and the expenses related to the child  
               welfare system. Most immediate is the untold  


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          Page 2

               effect of domestic violence on the lives of its  
               victims and their children.

          To provide protection for victims of domestic violence,  
          current law allows victims to seek a restraining order to  
          prevent an abuser from continuing the abuse.  That order,  
          granted by a court, may be of varying duration depending on  
          the circumstances.  Those orders generally cover the  
          victim, but may be extended to named family or household  
          members, upon a showing of good cause. 

          In addition to studies published in the Society and Animals  
          Journal and the Journal of Emotional Abuse, recent news  
          articles have described the use of pets by abusers to  
          control their victims, such as threatening to hurt an  
          animal if a victim were to leave an abusive situation.   
          Last year, New York, Vermont and Maine passed laws to  
          protect pets from this type of abuse.  Accordingly, this  
          bill would seek to protect pets by allowing a court to  
          include them within domestic violence protective orders.

                             CHANGES TO EXISTING LAW
           Existing law  allows a court to issue a domestic violence  
          protective order enjoining a party from molesting,  
          attacking, striking, stalking, threatening, sexually  
          assaulting, battering, harassing, destroying personal  
          property, and other specified behaviors. [Fam. Code   
          6218, 6320, 6340.]   Existing law  allows protective orders  
          to be issued ex parte, after notice and a hearing, or by a  
          judicial officer after assertions by a law enforcement  
          officer that the person is in immediate and present danger  
          of domestic violence.  [Fam. Code  6250, 6320, 6340.]

           Existing law  allows a court to extend that order, upon a  
          showing of good cause, to other named family or household  
          members. [Fam. Code  6320.]   Existing law  permits a court  
          to issue an ex parte order enjoining a party from specified  
          behaviors, exclude them from the family dwelling, determine  
          temporary custody and visitation of a minor child, and  
          temporarily determine use, possession or control of real or  
          personal property, provided certain requirements are met.   
          [Fam. Code  6321-24.] 

           Existing law  provides that a court with jurisdiction over a  


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          criminal matter may issue a criminal protective order  
          pursuant to Family Code provisions governing domestic  
          violence protective orders.  [Penal Code  136.2(a)(1).]

           Existing law  generally prohibits cruelty to animals. [Penal  
          Code  597 et seq.]

           This bill  would allow a court, upon a showing of good  
          cause, to include in a domestic violence protective order a  
          grant of exclusive care, custody, or control of any animal  
          owned, possessed, leased, kept or held by either the  
          petitioner, respondent, or minor child residing in the  
          residence.   This bill  would further allow the court to  
          order the respondent to stay away from the animal and  
          forbid the taking, transferring, encumbering, concealing,  
          molesting, attacking, striking, threatening, harming or  
          otherwise disposing of the animal.

           This bill  would require the Judicial Council to modify the  
          applicable criminal and civil court forms to conform to  
          this bill by July 1, 2009.
          1.    Stated need for the bill  

            According to the author:

               [u]niversity studies, coupled with surveys of  
               domestic violence shelters and animal welfare  
               organizations, show that abusers often threaten,  
               injure or kill pets as a way of controlling  
               others in the family.  Studies from across the  
               country have found an irrefutable link between  
               domestic violence, child abuse and animal cruelty  
               . . .

            Those studies, cited by the author, reported that 85% of  
            women, and 63% of children, surveyed entering the largest  
            battered women's shelters discussed incidents of pet  
            abuse.  An additional cited study reported that 71% of  
            women seeking shelter at a particular safe house stated  
            that their partner "threatened to hurt, or killed their  
            companion animals."



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            The American Society for the Prevention of Cruelty to  
            Animals (ASPCA), in support, contends that "[v]ictims of  
            domestic violence have overwhelmingly reported that their  
            pets are being threatened, harmed or killed by their  
            abuser as an aspect of the abuse perpetrated against  
            them."  Furthermore, the California Animal Association  
            (CAA) states that SB 353 "will help prevent abusers from  
            harming or threatening to harm animals in order to exert  
            power and control over their human victims."

          2.    All "animals" to be included  

            As stated above, this bill would allow animals to be  
            included in the scope of a domestic violence protective  
            order.  As the term is not specifically defined in the  
            bill, "animal" would encompass virtually any possible pet  
            that may be threatened by an abuser.  In defining  
            "animal," American Jurisprudence, Second Edition, states  
            that generally ". . . in the language of the law, the  
            word 'animal' is used to mean all animal life other than  
            humans   . . ." and Section 16302 of the Food and  
            Agricultural Code Section includes "any domestic bovine  
            animal, horse, mule, burro, sheep, goat, or swine . . ."   
            within the definition of animal.  

            Thus, that term would cover not only household dogs or  
            cats, but even a dairy cow or prized racehorse.  From a  
            public policy standpoint, that broad definition appears  
            appropriate due to the various animals that may be used  
            by a perpetrator of domestic violence to control their  
            victims.  While the definition could also include a  
            valuable leased animal, such as a showdog or racehorse,  
            the requirement of court approval upon a showing of good  
            cause provides as a layer of protection to prevent the  
            use of the provisions to gain control over valuable  
            animals absent sufficient justification.  Furthermore, SB  
            353's included findings and declarations, which among  
            other things state that "[p]erpetrators often abuse  
            animals in order to intimidate, harass, or silence their  
            human victims" provide clear evidence of legislative  
            intent to apply these sections in order to protect  
            animals, and to prevent abusers from using those animals  
            as a means to control their victims.   

            As discussed in Comments 3 and 4, the proposed orders  


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            would be contained within the protective order.   That  
            inclusion ensures that any order to stay away from an  
            animal, based upon threats of abuse, would be in effect  
            for the duration of that threat.

          3.    Types, and duration of domestic violence protective  
            orders and the effects of including family pets within  
            those orders  

            Depending on type, domestic violence protective orders  
            may last days, weeks, years, or even permanently.   
            Emergency Protective Orders, issued by a judicial officer  
            upon specific assertions by a law enforcement officer,  
            expire on the earliest of the fifth court day, or seventh  
            calendar day following issuance.  In contrast, requests  
            for Temporary Restraining Orders (TROs) are filed with  
            the court and become effective upon receiving a judge's  
            signature and being served on the batterer.  TROs may be  
            granted ex parte, without formal notice to, or presence  
            of the batter, and are issued or denied on the date of  
            application, unless the application is filed too late to  
            permit effective review.  [Fam. Code  6326.]  TROs are  
            generally effective for 21 days or until a hearing on the  
            matter.  After proper notice and hearing, a restraining  
            order may be granted for up to five years, subject to  
            future modification.  At that hearing, the petitioner  
            must make a showing of past acts of abuse and the  
            likelihood of continuing abusive conduct on the  
            respondent's part.  Upon request, that order may be  
            renewed for another five years, or permanently.  [Fam.  
            Code  6345.]

            In addition to ordering the respondent to stay away from  
            the animal in question, SB 353 would allow a court to  
            include a grant of care, custody or control over that  
            animal.  Due to the requirement of showing good cause,  
            initial grants of care and orders to stay away from an  
            animal would likely be placed within ex parte TROs.  As  
            evidenced by the large volume of individual support for  
            this bill, many individuals have strong emotional ties to  
            their pets.   While supporters, and the above cited  
            studies, maintain that that emotional tie is used by  
            abusers to control their victims, an alleged abuser may  
            also feel strongly connected to their jointly owned pet.   
            Although somewhat mitigated by the requirement of showing  


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            good cause, there remains a potential for ex parte orders  
            to be abused by a party to unjustly remove a beloved pet.  
             In that case, the respondent would be highly motivated  
            to contest the ex parte order depriving them of custody  
            of that animal.  At the subsequent noticed motion and  
            hearing, held within 21 days, the respondent would have  
            full opportunity to dispute the initial ex parte order  
            for exclusive care, custody, or control of the family  

            Thus, allegations supporting a showing of good cause  
            would be fully vetted at the subsequent noticed hearing,  
            providing respondents with the opportunity to refute any  
            orders based upon fraudulent accusations.  While  
            including pets within ex parte orders may encourage an  
            alleged abuser to challenge the order, from a public  
            policy standpoint, interim protection of pets appears  
            appropriate due to the harm, or threatened harm that may  
            occur if not included in the order.  As a result, the  
            Association of Veterinarians for Animal Rights (AVAR)  
            maintains that "more victims of abuse will seek help for  
            themselves, and the animals will not be left behind only  
            to be the victims of further retaliation."

            While the duration of protective orders relating to  
            personal conduct, stay-away, and residence exclusion are  
            subject to the provisions allowing for a duration of five  
            years, and in some cases, indefinitely, Family Code  
            Section 6345(b) states:

               the duration of any orders, other than the  
               protective order[] . . . that are also contained  
               in a court order issued after notice and a  
               hearing . . . 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.

            Thus, the duration of any order granting exclusive care  
            or control of an animal would arguably be governed by the  
            laws relating to disposition of property.  As that  
            provision does not alter the duration of orders relating  
            to personal conduct, such as preventing the respondent  
            from harming an animal, SB 353's effectiveness should not  
            be hampered by that provision in existing law.  Moreover,  


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            that subsection would arguably serve to protect interests  
            in valuable animals, such as leased racehorses.

          4.    Suggested clarifying amendment  

            As introduced, SB 353 states that upon a showing of good  
            cause, a court "may order that the petitioner be granted  
            the exclusive care, custody, or control of any animal . .  
            ."  While the context of the language indicates that  
            grants of exclusive custody would be included within  
            protective orders, it may also be read to allow the court  
            to make a separate order for permanent custody over an  
            animal.  Due to the emergency nature of many restraining  
            orders, those orders may be granted ex parte, without  
            requiring the presence of the alleged abuser.  The  
            author's office indicates that their intent was for the  
            grant of custody or control over the animal to be  
            included in the protective order, not a separate order.   
            As a result, that grant of custody would only be in  
            effect for the duration of the protective order, subject  
            to aforementioned exception in Family Code Section  

            Thus, the following amendment is suggested to clarify  
            that a grant of care, custody, or control is to be  
            included in the domestic violence protective order.

             Suggested Amendment:  

                 On page 3, lines 4-5, strike "order that the  
            petitioner be granted the" and insert:

                 include in a protective order a grant to the  
            petitioner of

          Support: American Federation of State, County and Municipal  
                 Employees (AFSCME), AFL-CIO; American Society for  
                 the Prevention of Cruelty to Animals (ASPCA); Animal  
                 Switchboard; Association of Veterinarians for Animal  
                 Rights (AVAR); BARC; California Animal Association  
                 (CAA); California Federation for Animal Legislation;  
                 Doris Day Animal League; Humane Society of the  
                 United States; PATH (Protecting Animals through  


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                 Temporary Housing); Rancho Coastal Humane Society;  
                 San Francisco District Attorney's Office; spcaLA;  
                 State Humane Association of California (SHAC); 245  

          Opposition: None Known

          Source: Author

          Related Pending Legislation:  None Known

          Prior Legislation:  AB 99 (Cohn, Chapter 125, Statutes of  
                         2005), extended the duration of protective  
                         orders from three to five years.