BILL ANALYSIS �
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,
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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
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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
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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
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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