BILL ANALYSIS Ó AB 454 Page 1 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 AB 454 Page 2 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.) AB 454 Page 3 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 AB 454 Page 4 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. AB 454 Page 5 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 Page 6 None Analysis Prepared by : Drew Liebert and Erik Martin / JUD. / (916) 319-2334