BILL ANALYSIS Ó AB 161 Page 1 Date of Hearing: April 2, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair AB 161 (Campos) - As Introduced: January 22, 2013 PROPOSED CONSENT (As Proposed to be Amended) SUBJECT : PROTECTIVE ORDERS: INSURANCE COVERAGE KEY ISSUE : SHOULD A COURT BE ABLE TO PREVENT PARTIES TO A DOMESTIC VIOLENCE RESTRAINING ORDER FROM CHANGING AN INSURANCE POLICY COVERING THE PARTIES OR THEIR CHILDREN? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS Under current law, when a married couple files for dissolution, both spouses are initially enjoined from removing their children from the state and from disposing of property. This allows the status quo to be maintained pending resolution of the larger issues facing the parties. They are also enjoined from changing insurance coverage for themselves or their children, again to maintain the status quo and ensure the parties are adequately protected during the dissolution process. This bill, sponsored by the Family Law Section of the State Bar, permits - but does not require - a court to make that same order with respect to insurance as part of a domestic violence protection order. In support of the bill, the author writes that domestic violence "is about power and control. Threats to 'cut off the victim' are a tool an abusive spouse may use to try to keep a partner from leaving or staying away." This bill seeks to prevent an abusive partner from terminating insurance in order to punish the victim for leaving or pressure one to return. The bill is supported by, among others, the California Partnership to End Domestic Violence and the California Police Chiefs Association. There is no reported opposition. SUMMARY : Permits a court when issuing an ex parte domestic violence restraining order to restrain a party from changing any insurance coverage. Specifically, this bill provides that a court, when issuing an ex parte order under the Domestic Violence Protection Act, may restrain any party from cashing, AB 161 Page 2 borrowing against, cancelling, transferring, or disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties and their children. EXISTING LAW : 1)Allows a court to issue a domestic violence protective order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, and other specified behaviors. With respect to married couples, the court may restrain a party from specified acts in relation to community, quasi-community or separate property, as specified. (Family Code Section 6200 et seq. Unless stated otherwise, all further statutory references are to that code.) 2)Allows protective orders to be issued ex parte and after a noticed motion and a hearing. (Sections 6320 and 6340.) 3)Provides that a domestic violence protective order may include, among other things, orders excluding a party from a residence, enjoining a party from specific behavior, determining temporary custody and visitation rights, determining the temporary use of property, and restraining a party from specific acts to the parties' community, separate and quasi-community property. (Sections 6321-25.) 4)As part of the summons issued at the start of a dissolution case, mandates that the parties are restrained from, among other things: a) Transferring, encumbering, concealing or in any way disposing of any real or personal property, whether community, quasi-community or separate property; and b) Cashing, borrowing against, cancelling, transferring, or disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties and their children for whom support may be ordered. (Section 2040(a).) COMMENTS : Under current law, when a married couple files for dissolution, they are both initially enjoined from removing their children from the state and from disposing of property. This allows the status quo to be maintained pending resolution of the larger issues facing the parties. They are also enjoined AB 161 Page 3 from changing insurance coverage. This helps ensure that the parties and their children are able to maintain health insurance, automobile insurance or life insurance pending a court determination about their respective responsibilities, and, again, helps maintain the status quo and protect the parties and their children, pending resolution of the larger issues. This bill permits - but does not require - a court to make that same order with respect to insurance as part of a domestic violence protection order, whether ex parte or after a hearing. In support of the bill, the author writes: Economic security is crucial in keeping abuse survivors safe once they leave an abusive partner. Health insurance and auto insurance in particular can be key to surviving apart from an abusive spouse. In many cases, the abusive spouse is also the employed spouse who is providing various insurance coverage plans for the family. Domestic violence is about power and control. Threats to "cut off the victim" are a tool an abusive spouse may use to try to keep a partner from leaving or staying away. AB 161 would prevent an abusive spouse from terminating insurance in order to punish a spouse for leaving or pressure one to return. AB 161 is meant to mirror in the Domestic Violence Prevention Act the existing protections that married persons have once they file a dissolution, legal separation, or nullity. In particular, it would permit a court to issue an ex parte order preventing a party from changing or terminating the beneficiaries of any insurance held for the benefit of the parties and/or their children. Devastating Effects of Domestic Violence on Children and Families : Domestic violence is a serious criminal justice and public health problem most often perpetrated against women. (Extent, Nature and Consequences of Intimate Partner Violence: Findings from the National Violence against Women Survey, U.S. Department of Justice (2001).) Prevalence of domestic violence at the national level ranges from 960,000 to three million women each year who are physically abused by their husbands or boyfriends. While the numbers are staggering, they only include those cases of reported domestic violence. In fact, according to a 1998 Commonwealth Fund survey of women's health, nearly 31 AB 161 Page 4 percent of American women report being physically or sexually abused by a husband or boyfriend at some point in their lives. (Health Concerns Across a Woman's Lifespan: 1998 Survey of Women's Health, The Commonwealth Fund (May 1999).) Domestic violence continues to be a significant problem in California. In 2005, the Attorney General's Task Force on Domestic Violence reported that: The health consequences of physical and psychological domestic violence can be significant and long lasting, for both victims and their children. . . . A study by the California Department of Health Services of women's health issues found that nearly six percent of women, or about 620,000 women per year, experienced violence or physical abuse by their intimate partners. Women living in households where children are present experienced domestic violence at much higher rates than women living in households without children: domestic violence occurred in more than 436,000 households per year in which children were present, potentially exposing approximately 916,000 children to violence in their homes every year. (Report to the California Attorney General from the Task Force on Local Criminal Justice Response to Domestic Violence, Keeping the Promise: Victim Safety and Batterer Accountability (June 2005) (footnotes omitted).) This bill allows the court to extend current protections afforded to property also to insurance . Today, married couples seeking a divorce are enjoyed from disposing of property and changing any insurance held for the benefit of the parties or their children. When a couple appears in court seeking a protective order, as opposed to a divorce, current law allows a court, when issuing the protective order, to prevent the parties from disposing of property, but does not similarly allow the court to protect insurance benefits. This bill would do just that, by allowing, but not requiring, the court to issue an order enjoining the parties from changing any insurance held for the benefit of the parties or their children. In doing so, this bill helps allow families to resolve their responsibilities to each other and their children in a more thoughtful manner and better protect their health and their financial interests. Proposed Amendment : This bill, as drafted, seems to imply that AB 161 Page 5 insurance must only be maintained if it is held for the benefit of the parties and their children. However, some insurance policies may cover either the parties or the children, not both. Thus, the author has rightly agreed to amend the bill to ensure that a court can restrain any change to the insurance if it covers the parties, their children, or both. The following amendment accomplishes this change: On page 6, delete "and" and insert: , or On page 7, after "ordered" insert: , or both ARGUMENTS IN SUPPORT : The California Partnership to End Domestic Violence writes that allowing insurance protections to be included with a domestic violence order "will help protect the insurance benefits of victims and their children. Financial abuse and economic insecurity are factors which commonly deter victims from leaving their abusive partners. Including these new protections with the ex parte order will remove one potential obstacle as a survivor seeks a permanent solution to end the abuse." REGISTERED SUPPORT / OPPOSITION : Support Family Law Section of the State Bar (sponsor) Association of Certified Family Law Specialists (as proposed to be amended) California Communities United Institute California Partnership to End Domestic Violence California Police Chiefs Association SPAC of the Junior Leagues of California Opposition None on file Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334