BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 161 (Campos)
As Amended April 8, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Restraining orders
DESCRIPTION
This bill would authorize a court in a domestic violence
proceeding to issue an ex parte order restraining a party from
cashing, borrowing against, canceling, transferring, disposing
of, or changing the beneficiaries of any insurance held for the
benefit of the parties or their children, to whom support may be
owed.
BACKGROUND
Despite numerous beneficial legislative measures, domestic
violence remains a significant problem, affecting an estimated
one in four families. "Abuse" under the Domestic Violence
Prevention Act encompasses a number of different actions,
including: (1) physically hurting or trying to hurt someone; (2)
sexual assault; (3) making someone reasonably afraid that they
or someone else are about to be seriously hurt; (4) harassing,
stalking, or threatening someone; (5) disturbing someone's
peace; or (6) destroying someone's personal property. In
addition, physical abuse, is not limited to hitting, but may
include any unwanted touching, following a person, or keeping a
person from freely coming and going. Victims of domestic
violence may petition the court to enjoin an abuser from
specified behavior for up to five years.
In family law, parties who file for dissolution of marriage are
automatically prohibited from engaging in certain behaviors,
including removing minor children from the state, disposing of
(more)
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property (e.g., community, quasi-community, and/or separate
property), or changing insurance coverage, while issues
regarding the dissolution are being determined. This ensures
that while the action is pending, the status quo is maintained
and parties are protected.
Similar to an action for dissolution, in a domestic violence
proceeding the court may issue orders relating to child custody
and visitation, and orders enjoining married parties from
specified acts related to property. This bill would give courts
in a domestic violence proceeding the discretion to also enjoin
parties from changing insurance coverage or benefits for any
party, including minor children, to whom support may be owed.
CHANGES TO EXISTING LAW
Existing law establishes the Domestic Violence Prevention Act,
and authorizes a court to issue an ex parte domestic violence
protective order enjoining a party from molesting, attacking,
striking, stalking, threatening, sexually assaulting, battering,
harassing, telephoning, destroying personal property, and other
specified behaviors. (Fam. Code Sec. 6200 et seq.)
Existing law 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. (Fam. Code Secs. 6321-25.)
Existing law , with respect to married couples, further
authorizes the court in a domestic violence proceeding to
restrain a party from specified acts in relation to community,
quasi-community or separate property, as specified. (Fam. Code
Sec. 6325.)
Existing law authorizes a court to issue protective orders ex
parte and/or after a noticed motion and a hearing. (Fam. Code
Secs. 6320, 6340.)
Existing law , in an action for dissolution of a marriage,
mandates that the parties are restrained from certain behavior,
including:
transferring, encumbering, concealing or in any way disposing
of any real or personal property, whether community,
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quasi-community or separate property; and
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. (Fam. Code
Sec. 2040(a).)
This bill would authorize a court to issue an ex parte order
restraining any party from cashing, borrowing against,
canceling, transferring, disposing of, or changing the
beneficiaries of any insurance or other coverage held for the
benefit of the parties and/or their child(ren) for whom support
may be ordered.
COMMENT
1.Stated need for the bill
According to the author:
AB 161 provides additional economic and financial safeguards
for domestic violence victims. It ensures that their health,
auto, and other forms of insurance will be protected when
leaving an abusive relationship. AB 161 specifically allows a
victim to obtain an ex parte order prohibiting their abuser
from cancelling or changing any insurance policy held for the
benefit of the victim or their children.
Currently, when a married person files for a restraining
order, the Domestic Violence Prevention Act only contains
parallel provisions to obtain ex parte orders to protect
property ? but has no similar protection for insurance. AB
161 is meant to provide married persons filing for a domestic
violence restraining order with similar protections for
insurance.
2.Restrictions limited to persons for whom support may be
ordered
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This bill would authorize a court to enjoin a party or parties
in a domestic violence action from changing the insurance
coverage held for the benefit of parties for whom support may be
ordered. Current law does not authorize a support order for
adults who are merely cohabitating, but only for children or
spouses. Thus, this bill is limited to minor children of a
couple, married or not, and, in the case of marriage, to the
spouses.
The Family Law Section of the Bar Association of San Francisco
writes in support that "this bill would ensure that insurance is
not canceled in a retaliatory manner when a person seeks
protection from an abusive spouse or partner." Staff notes that
because this bill is limited to spouses, or minor children of a
couple, it would not authorize a court to enjoin any behavior
beyond what it is authorized to enjoin in a custody or divorce
proceeding. Thus, a victim seeking to escape an abusive
relationship will be afforded, at the discretion of the court,
important protections while he or she decides the best course of
action to protect himself or herself and/or children from abuse.
The Association of Certified Family Law Specialists, in support
of this bill, writes:
These [protections] are virtually identical to the automatic
temporary restraining orders set forth on the summons in
dissolution of marriage, legal separation, and nullity cases
under the Family Code, and it makes sense that such important
protections should be available under the Domestic Violence
Prevention Act.
3.Limited to ex parte actions
This bill would only authorize the court to restrain specified
parties from changing insurance coverage in domestic violence ex
parte actions. An ex parte action, typically used in emergency
situations, allows a court to issue a temporary order quickly
because not all parties are required to be present. However,
because a party may not have had a chance to defend his or her
interests, these orders are very short in duration. For
example, ex parte domestic violence prevention orders last
approximately five days before expiring. (Fam. Code Sec. 6256.)
Parties then typically have a noticed hearing, where a court can
hear testimony and consider evidence from both sides. (Fam. Code
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Sec. 6340.) After a noticed hearing, the court is authorized to
extend the original (ex parte) restraining order into a
temporary restraining order for a period of up to five years.
Although this bill would allow an ex parte order to limit a
restrained party from changing insurance coverage, that same
party would have an opportunity to present evidence to the court
before a permanent order is granted. Staff further notes that,
even in the event of a five-year restraining order limiting a
party's ability to change insurance, that party is entitled, at
any time, to petition the court for termination or modification
of the restraining order. Thus, parties who reconcile, or
experience a change of circumstances meriting a change of order,
would not be unnecessarily restrained.
Support : Association of Certified Family Law Specialists;
California Communities United Institute; California Legislative
Women's Caucus; California Partnership to End Domestic Violence;
California Police Chiefs Association; Family Law Section of the
Bar Association of San Francisco; SPAC of the Junior Leagues of
California
Opposition : None Known
HISTORY
Source : Executive Committee of the Family Law Section of the
State Bar (FLEXCOM)
Related Pending Legislation : AB 157 (Campos) would authorize a
court to issue an ex parte order enjoining a party from credibly
impersonating or falsely personating another party. This bill
is scheduled to be heard in the Senate Judiciary Committee on
June 4, 2013.
Prior Legislation :
AB 1596 (Hayashi, Chapter 572, Statutes of 2010) implemented
recommendations from the Judicial Council's Protective Orders
Working Group and made various changes to protective order
statutes.
AB 353 (Kuehl, Chapter 205, Statutes of 2007) authorized
domestic animals to be included in the scope of a domestic
violence protective order.
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AB 99 (Cohn, Chapter 125, Statutes of 2005), extended the
duration of protective orders from three to five years.
AB 878 (Rogan, Chapter 598, Statutes of 1996) expanded the
definition of "abuse" for domestic violence purposes to include
stalking, annoying or harassing telephone calls, contact by mail
with the intent to annoy or harass, and the intentional
destruction of personal property .
AB 2224 (Kuehl, Chapter 904, Statutes of 1996) increased the
penalties for battery against a spouse or person with whom the
defendant is cohabiting from six months to 12 months.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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