BILL ANALYSIS Ó
AB 454
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Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 454 (Silva) - As Amended: March 16, 2011
PROPOSED CONSENT
SUBJECT : PROTECTIVE ORDERS
KEY ISSUE : IN ORDER TO BETTER PROTECT VICTIMS OF DOMESTIC
VIOLENCE, SHOULD IT BE REQUIRED THAT A PERSON PROTECTED BY A
CIVIL PROTECTIVE ORDER RECEIVE ACTUAL NOTICE PRIOR TO A HEARING
TO MODIFY OR TERMINATE THAT PROTECTIVE ORDER?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the Conference of
California Bar Association (CCBA), seeks to ensure that a victim
protected by a civil protective order receives actual notice of
a hearing to terminate, shorten the duration of, or otherwise
modify that protective order.
Existing law allows a court to terminate early or modify a
protective order, but it does not require that the protected
party receive notice of the hearing. Absent a notification of
the hearing to the protected party, an order could be modified
or terminated entirely without the victim the order is designed
to protect having any knowledge of the alteration until after it
has occurred.
This bill seeks to better protect the victim by closing this gap
in the law and requiring that they be notified prior to a
hearing to modify or terminate the protective order before its
expiration date. If the protected party cannot be notified
prior to the hearing, the bill requires that the motion to
modify or terminate the order be denied, or the hearing be
continued until the protected party can be properly notified.
There is no known opposition to this bill.
SUMMARY : Requires that a party protected by a civil protective
order be notified prior to a hearing to modify that order or
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terminate it before its expiration date. Specifically, this
bill :
1)Requires, if an action is filed for the purpose of terminating
or modifying a civil protective order prior to the expiration
date specified in the order by a party other than the
protected person, the party who is protected by the order
shall be notified of the hearing prior to that hearing by
either personal service or mail with return receipt required.
2)Requires that if the party protected by the order cannot be
notified prior to the hearing the court shall deny the motion
to modify or terminate the order without prejudice, or
continue the hearing until the protected party can be properly
notified.
3)Provides that a party protected by a protective order may
waive his or her right to notice if he or she is physically
present in court and requests that the court take action on
the termination or modification request.
EXISTING LAW :
1)Authorizes a court to issue a protective order for a duration
of not more than five years. (Family Code Section 6345. All
further statutory references are to this code unless otherwise
stated.)
2)Authorizes a court to terminate or modify a protective order
by further order of the court. (Section 6345.)
3)Requires that a petitioner show, to the satisfaction of the
court, reasonable proof of a past act or acts of abuse before
a protective order will be issued. (Section 6300.)
4)Allows for the renewal of a protective order for an additional
five years, or permanently, without any additional showing of
abuse since the initial order. (Section 6345.)
5)Allows a court to issue a civil harassment protective order,
workplace violence protective order, or postsecondary
education protective order for up to three years upon a
showing of clear and convincing evidence. (Code of Civil
Procedure Sections 527.6, 527.8, and 527.85.)
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6)Permits a juvenile court to issue a protective order on behalf
of a dependent child or a ward of the state for a duration of
up to three years. (Welfare & Institutions Code Section
213.5.)
7)Allows a court to issue a protective order on behalf of an
elder or dependent adult for a duration of up to three years.
(Welfare & Institutions Code Section 15657.03.)
8)Allows a law enforcement officer to seek an EPO from a court,
24 hours a day, seven days a week, if any person or child is
in immediate and present danger of domestic violence or abuse
or stalking, or in imminent danger of abduction by a parent or
relative. An EPO is effective for up to seven days. (Family
Code Sections 6240 et seq .; Penal Code Section 646.91.)
COMMENTS : This non-controversial bill, sponsored by the CCBA,
seeks to ensure that a person protected by a civil protective
order receives actual notice of a special or ex parte hearing
set to terminate, shorten the duration of, or otherwise modify
that protective order.
In support of the measure the author explains that,
"Ýr]estraining orders are typically issued to protect people
from violence or threat of violence. Since this circumstance
provides a heightened potential for physical danger and death,
the notice requirements for terminating the protection early
should be heightened as well."
Guaranteeing Notice for the Protected Party : After the court
issues a civil protective order, existing law allows the court,
on motion from a party, to terminate, shorten, or otherwise
modify the protective order. However, under current law if a
restrained party makes the motion to modify or terminate the
protective order, the party that is intended to be protected by
the protective order does not receive the same notice of the
hearing or opportunity to present his or her case to the court
that was extended to the defendant at the time the protective
order was originally issued.
It is possible that, absent a guarantee of notification of the
hearing for the protected party, a protective order could be
modified or terminated entirely without the person the order is
designed to protect having any knowledge of the alteration until
after it has occurred. Allowing for a civil protective order to
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be modified or terminated without ensuring that the protected
party receives prior notice of the hearing could potentially
exacerbate the problem of violence, which is highlighted in a
report by the California Commission on the Status of Women
(CCSW) in 2008 that notes in part:
Violence against women has wide-ranging and long-term
physical and psychological effects on victims and their
children. . . . Six percent of California women suffer
physical injuries from domestic violence every year. . . .
There is one forcible rape every 56 minutes in California.
In view of these realities, the Commission supports the
following agenda. CCSW, Public Policy Agenda and
Legislative Proposals for the 2009-2010 Session , available
at
http://women.ca.gov/images/pdf/issues/1073.2009.2010publicpo
licyagenda.pdf
This bill seeks to close this gap in the law by requiring that
the party protected by a civil protective order-including
family, civil harassment, workplace harassment, postsecondary
education harassment, juvenile, and elder and dependent adult
abuse protective orders-be notified prior to a hearing to modify
or terminate that order before its expiration date. If the
protected party cannot be notified prior to the hearing, this
bill seeks to create a requirement that the motion to modify or
terminate the order be denied, or continue the hearing until the
protected party can be properly notified.
Opportunity for Waiver : This measure seeks to extend to the
protected party and victim of violence or the threat of violence
the same guarantee of notice and opportunity to be heard that is
currently granted to the restrained party. This measure
additionally seeks to provide the parties and courts some
flexibility in the application of the notice requirement by
allowing a protected party to waive his or her right to notice
of a hearing if he or she is physically present in court and
requests the court to take action on the termination or
modification request.
While providing the flexibility necessary for the courts to
adapt to individual circumstances, this measure seeks to ensure
that a modification or termination of a civil protective order
will only be done with the full knowledge of the protected
party.
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ARGUMENTS IN SUPPORT : In strong support of the measure CCBA
wrote to the Committee stating that, "AB 454 would increase the
protection provided . . . by requiring that the protected party
be given prior notice of any hearing to modify or terminate the
order." CCBA goes on to comment that, "the proposed amendments
would further strengthen the law by expanding its application to
all civil restraining orders, and by providing an exception to
the notice requirement if the protected party is the petitioner
or is physically present at the hearing." CCBA concludes by
noting that, "the notice requirements for terminating or
reducing the protection provided by these orders early should be
heightened as well, to ensure to the extent possible that
protected parties receive actual notice. AB 454 would help
accomplish this important goal."
Prior Related Legislation : AB 1596 (Hayashi) in 2010, effective
January 1, 2012, implemented recommendations from the Judicial
Council's Protective Orders Working Group and made various
changes to protective order statutes. Ch. 572, Stats. of 2010.
AB 99 (Cohn) in 2005 extended the maximum duration of a
protective order from three years to up to five years, and
extended the duration of a protective order renewal an
additional five years instead of three years. Ch. 125, Stats.
of 2005.
AB 112 (Cohn) in 2005 provided enforcement precedence to an
Emergency Protective Order (EPO) over any other restraining or
protective order. Ch. 132, Stats. of 2005.
AB 118 (Cohn) in 2005 required that if a criminal protective
order is issued, as specified, a subsequent visitation or
custody and visitation order shall make reference to, and
acknowledge the precedence of enforcement of, the criminal
protective order. Ch. 465, Stats. of 2005.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Association (sponsor)
Opposition
AB 454
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None
Analysis Prepared by : Drew Liebert and Erik Martin / JUD. /
(916) 319-2334