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
SUBJECT
Domestic Violence Protective Orders: Animals
DESCRIPTION
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.
BACKGROUND
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
(more)
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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.
COMMENT
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
pet.
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
6345(b).
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
individuals
Opposition: None Known
HISTORY
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.
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