BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 176 (Campos)
As Amended April 8, 2013
Hearing Date: June 11, 2013
Fiscal: Yes
Urgency: No
NR
SUBJECT
Family law: protective and restraining orders
DESCRIPTION
This bill would provide, beginning July 1, 2014, that if more
than one restraining order has been issued and one of the orders
is a no-contact order, a peace officer must enforce the
no-contact order. This bill would make other conforming
changes.
BACKGROUND
When a criminal court finds that harm to, or intimidation or
dissuasion of, a victim or witness in a criminal case has
occurred or is reasonably likely to occur, the court may issue
protective orders restraining contact between the defendant and
those persons and their families. Such orders are a frequent
occurrence in criminal domestic violence cases. The parties to
a criminal domestic violence case are often parties to parallel
civil matters regarding their relationship as well, including
divorce, custody, and juvenile court proceedings. In these
proceedings, civil, family, and juvenile courts also have the
ability to issue protective orders. Frequently, these orders,
whether civil or criminal, conflict because one order will
authorize a greater measure of contact between the defendant and
petitioner than the other order.
Additionally, law enforcement officers are authorized to seek an
emergency protective order (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 in imminent
(more)
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danger of abduction by a parent or relative. An EPO is
effective for up to seven days.
The Legislature has enacted a number of different laws which
attempt to resolve which restraining order receives priority
when orders are in conflict. AB 160 (Bates, Chapter 698,
Statutes of 2001) specified that protective orders issued by a
criminal court have precedence over any civil court order
pertaining to the same persons. AB 112 (Cohn, Chapter 132,
Statutes of 2005) gave EPOs priority in enforcement over any
other restraining or protective order. This bill seeks to offer
more protection to victims by providing that no-contact orders,
typically the most protective of all restraining orders, are
given priority over other restraining orders.
CHANGES TO EXISTING LAW
Existing law authorizes a court to issue a civil or criminal
protective order to protect victims of domestic violence, and
authorizes a court to issue a no-contact order for the protected
party, and, in the discretion of the court, for other named
family or household members. (Fam. Code Sec. 6320 et seq.; Pen.
Code Sec. 136.2.)
Existing law authorizes a law enforcement officer to seek an
emergency protective order (EPO) from a court if any person or
child is in immediate and present danger of domestic violence,
abuse, or stalking, or in imminent danger of abduction by a
parent or relative. Existing law allows a court to issue an EPO
for up to seven days. (Fam. Code Sec. 6250 et seq.; Pen Code
Sec. 646.91.)
Existing law provides that if there are multiple civil
protective or restraining orders regarding the same parties, the
order last entered shall be enforced. If there are both
criminal and civil orders, the last criminal order shall be
enforced. (Fam. Code Secs. 6383, 6405.)
Existing law gives EPOs, whether civil or criminal, precedence
in enforcement over any other restraining or protective order,
provided that the EPO is more restrictive as to the restrained
party than any other orders. (Pen. Code Sec. 136.2(c).)
This bill would, beginning July 1, 2014, provide that when there
are multiple protective or restraining orders regarding the same
parties and one of those orders is a no-contact order, law
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enforcement is required to enforce the no-contact order.
This bill would, as of July 1, 2014, delete the enforcement
priority currently given to EPOs over other protective orders
involving the same parties.
This bill would require the Judicial Council, by July 1, 2014,
to update civil and criminal court forms, consistent with the
provisions of this bill.
COMMENT
1.Stated need for the bill
According to the author:
Domestic violence victims often have multiple restraining
orders issued by both civil and criminal courts against their
abusers. Restraining orders vary in their level of protection
with no-contact orders being the strongest, stay away orders
being the second strongest and peaceful contact orders being
the third strongest. Given that many victims have multiple
protective orders, existing law specifies that the most recent
criminal order be enforced over any other order. However, the
most recent criminal order may not provide the greatest level
of protection for victims. Abusers may very well continue to
violate a civil no contact order because he or she knows that
the police will not enforce the civil protective order if a
criminal order exists.
The highest level of protection for domestic violence victims
is the no-contact order, which can be issued by either a
criminal or civil court. AB 176 ensures that domestic
violence victims receive the highest level of court protection
by requiring a no-contact order issued by either a criminal or
civil court, to be enforced over any other order.
2."No-contact" orders are most protective of victims
Both civil and criminal courts are able to issue orders
prohibiting a person from harassing, assaulting, following, or
threatening a protected party and his or her family.
Restraining orders can also require a restrained party to vacate
a premises, or require that a restrained party stay away from
any number of locations including the protected person's home,
vehicle, workplace, or school. Many times these orders restrict
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certain behavior, but allow for "peaceful contact." This is
common where parties live together, have children together and
must share custody, or where parties work in the same location.
Offering even more protection, courts may issue a "no-contact
order," which prohibits any contact with the protected party.
In the event that multiple restraining orders have been issued,
criminal restraining orders are generally given priority over
civil restraining orders. This bill would instead provide that
no-contact orders, whether issued by a civil or criminal court,
take priority over all other restraining orders. Three judges
of the Superior Court of Santa Clara County, who have observed
cases in which the criminal court has issued a less restrictive
order than the family court, write in support of this bill:
It is a horrifying moment when a court recognizes the real
need for a no-contact order to protect the victim and his or
her family, only to find that a preexisting peaceful conduct
criminal protective order essentially precludes increased
protection for that family. We have heard many stories from
terrified victims who explained that when they called the
police to report a violation of the no-contact restraining
order they were told it could not be enforced because there
was an existing criminal court order that allowed for peaceful
contact.
Unfortunately, the current approach under the law not only
places the victim at greater risk of further harm, but it also
produces the unintended consequence of encouraging the
batterer to continue violating the family court no-contact
restraining order because he or she knows that the police will
not enforce it. In addition, if the criminal case has been
concluded, or if the perpetrator is no longer on probation, it
can be difficult, if not impossible, for the victim to modify
the criminal protective order.
Staff notes that unlike civil restraining orders which are
issued for up to five years, criminal restraining orders may be
issued for up to ten years. Thus, under existing law, criminal
restraining orders maintain priority over civil orders for
potentially a very long time. In situations where a more
restrictive civil restraining order has been issued, that order
is null under current law until the criminal order expires.
This bill would resolve the problem of conflicting restraining
orders by giving no-contact orders priority, regardless of when
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it was issued, or by which court. This would offer victims of
domestic violence the most protection from an abuser, and create
a system by which criminal and civil courts may protect victims
equally.
3.Eliminates need for law enforcement officers to interpret
multiple protective orders
Under existing law, criminal restraining orders generally take
priority over civil orders. However, if an emergency protective
order (EPO) has been issued, that order is given enforcement
priority over all other orders, as long as that EPO is more
restrictive on the restrained person.
Thus, under the current priority scheme, law enforcement
officers may be required to determine which restraining order is
the most restrictive. Arguably, if the purpose of the
restraining order is to protect a party from harassment or
abuse, law enforcement officers should be looking to which order
best protects that person, not to when an order was issued,
which court issued it, or whether it is the "most restrictive."
This bill would remove the priority of an EPO, and instead give
priority to no-contact orders, whether civil, criminal, or an
EPO. If a no-contact order has not been issued, this bill would
otherwise maintain the existing priority scheme. The California
Department of Finance, in opposition to this bill, argues that
because this bill would require law enforcement officers to
prioritize no-contact orders, and thus, could increase the
workload of local law enforcement agencies.
Supporters of this bill assert the contrary-that under this
bill, there is no judgment call for law enforcement officers to
make. They argue that a protective order which prohibits
contact is the order that law enforcement officers would be
required to enforce. The Association of Certified Family
Specialists, in support, writes:
This bill strengthens protections for victims of domestic
violence, and eliminates dangerous confusion for peace
officers who must enforce a protective order when multiple
orders may be in effect simultaneously. If this bill is
enacted, criminal court protective orders will still take
precedence over civil (family) court protective orders, the
later issued order will take precedence if multiple orders are
issued by criminal courts or by civil courts, and a
"no-contact" provision in any order will "trump" the other
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orders in effect. This eliminates any need for peace officers
to interpret existing orders, and assures maximum protection
for protected persons at those perilous moments when the
courts are not open, and an immediate danger is present and
must be confronted by a peace officer.
Support : Association of Certified Family Law Specialists;
California Police Chiefs Association; California Probation,
Parole and Correctional Association; California Communities
United Institute; National Association of Social Workers -
California Chapter; three judges of the Superior Court of
California County of Santa Clara
Opposition : California Department of Finance
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 118 (Cohn, Chapter 465, Statutes of 2005) required that if a
criminal protective order has been issued, as specified, a
visitation order or a specified custody and visitation order
shall make reference to, and acknowledge the precedence of
enforcement of any appropriate criminal protective order.
AB 112 (Cohn, Chapter 132, Statutes of 2005) See Background.
AB 160 (Bates, Chapter 698, Statutes of 2001) See Background.
AB 356 (Snyder, Chapter 320, Statutes of 1994) required that
custody and visitation orders in a case in which domestic
violence is alleged and a restraining order has been issued, the
custody or visitation order shall specify the time, day, place,
and manner of transfer of the child so as to limit the child's
exposure to potential domestic violence.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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