BILL ANALYSIS                                                                                                                                                                                                    



                                                                  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, 
          "r]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