California Legislature—2013–14 Regular Session

Assembly BillNo. 2089


Introduced by Assembly Member Quirk

February 20, 2014


An act to amend Sections 6203, 6300, 6301, 6305, 6340, and 6345 of, and to repeal and add Section 6220 of, the Family Code, relating to domestic violence.

LEGISLATIVE COUNSEL’S DIGEST

AB 2089, as introduced, Quirk. Domestic violence: protective orders.

The Domestic Violence Prevention Act authorizes a judicial officer to issue a protective order after notice and a hearing for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, based on an affidavit showing reasonable proof of past abuse. The act defines domestic violence as abuse perpetrated against specified persons, and further defines abuse within that context. Under existing law, failure to state the expiration date of the order, as specified, creates an order with a duration of 3 years from the date of issuance. Existing law requires, under certain circumstances, the clerk of the court to submit the proof of service of a protective order directly into the Department of Justice Domestic Violation Restraining Order System.

This bill would instead authorize the issuance of a protective order after notice and a hearing for the purpose of providing expeditious and effective protection from abuse to ensure that the lives of domestic violence victims and their children will be as safe, secure, and uninterrupted as possible. The bill would provide that these orders may be issued on the basis of evidence of past abuse, without any showing that the wrongful acts will be continued or repeated. The bill would prohibit the court from denying an order solely because of the length of time between an act of abuse and the filing of the petition for the restraining order. The bill would also require the trial court to state its reasons for denying a protective order in writing or on the record, if a statement of decision is not requested. The bill would provide that failure to state the expiration date of the order creates an order with a duration of 5 years from the date of issuance.

Existing law authorizes the court to issue a mutual order enjoining the parties from specific acts of abuse if both parties personally appear, each party presents written evidence of abuse or domestic violence, and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

This bill would instead authorize the issuance of a mutual order if neither party acted as the dominant aggressor. The bill would direct the court, in identifying the dominant aggressor, to consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person involved acted in self-defense.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) Every person has a right to be safe and free from violence
4and abuse in his or her home and intimate relationships.

5(b) Domestic violence is a pervasive public safety and public
6health problem that affects people of all income levels, cultures,
7religions, ages, ethnic backgrounds, sexual orientations, and
8neighborhoods.

9(c) Domestic violence is not limited to actual and threatened
10physical acts of violence, but also includes sexual abuse, stalking,
11psychological and emotional abuse, financial control, property
12control, and other behaviors by the abuser that are designed to
13exert coercive control and power over the victim.

14(d) There is a positive correlation between domestic violence
15and child abuse, and children, even when they are not physically
P3    1assaulted, suffer deep and lasting emotional, health, and behavioral
2effects from exposure to domestic violence.

3(e) Domestic violence victims face significant barriers to safely
4leaving an abusive relationship, including, but not limited to, a
5risk of retaliation and escalated violence by the abuser, concerns
6over the safety and custody of their children, an impending loss
7of financial support and housing, the responsibility for other
8household members and pets, and difficulties accessing legal and
9community systems to seek protection from abuse.

10(f) Studies have shown that obtaining a civil protective order
11 against an abuser can increase a victim’s safety, decrease a victim’s
12fear of future harm, and improve a victim’s overall sense of well
13being and self-esteem.

14(g) Because the issuance of civil protective orders often results
15in declines in domestic violence, public money spent on protective
16order intervention produces significant cost savings to society,
17including decreasing victims’ time off from work, property loss,
18use of health services, and use of community, legal, and criminal
19justice interventions.

20(h) Civil protective orders are most effective when they offer
21comprehensive relief to address the various barriers victims face
22when safely separating from an abuser, are specific in their terms,
23and are consistently enforced.

24(i) For these reasons, the effective issuance and enforcement of
25civil protective orders are of paramount importance in the State
26of California as a means for promoting safety, reducing violence
27and abuse, and preventing serious injury and death.

28

SEC. 2.  

Section 6203 of the Family Code is amended to read:

29

6203.  

begin insert(a)end insertbegin insertend insertFor purposes of this act, “abuse” means any of the
30following:

begin delete

31(a)

end delete

32begin insert(1)end insert Intentionally or recklessly to cause or attempt to cause bodily
33injury.

begin delete

34(b)

end delete

35begin insert(2)end insert Sexual assault.

begin delete

36(c)

end delete

37begin insert(3)end insert To place a person in reasonable apprehension of imminent
38serious bodily injury to that person or to another.

begin delete

39(d)

end delete

P4    1begin insert(4)end insert To engage in any behavior that has been or could be enjoined
2pursuant to Section 6320.

begin insert

3(b) Abuse is not limited to the actual infliction of physical injury
4or assault.

end insert
5

SEC. 3.  

Section 6220 of the Family Code is repealed.

begin delete
6

6220.  

The purposes of this division are to prevent the
7recurrence of acts of violence and sexual abuse and to provide for
8a separation of the persons involved in the domestic violence for
9a period sufficient to enable these persons to seek a resolution of
10the causes of the violence.

end delete
11

SEC. 4.  

Section 6220 is added to the Family Code, to read:

12

6220.  

The purpose of this division is to provide expeditious
13and effective protection from abuse to ensure that the lives of
14domestic violence victims and their children will be as safe, secure,
15and uninterrupted as possible.

16

SEC. 5.  

Section 6300 of the Family Code is amended to read:

17

6300.  

begin insert(a)end insertbegin insertend insertAn order may be issued under this part, with or
18without notice, to restrain any person for the purposebegin delete of preventing
19a recurrence of domestic violence and ensuring a period of
20separation of the persons involvedend delete
begin insert specified in Section 6220end insert, if an
21affidavit or, if necessary, an affidavit and any additional
22information provided to the court pursuant to Section 6306, shows,
23to the satisfaction of the court, reasonable proof of a past act or
24acts of abuse.begin insert The court may issue an order under this part based
25solely on the affidavit or testimony of the person requesting the
26restraining order.end insert

begin insert

27(b) An order under this part may be issued on the basis of
28evidence of past abuse, without any showing that the wrongful
29acts will be continued or repeated.

end insert
30

SEC. 6.  

Section 6301 of the Family Code is amended to read:

31

6301.  

(a) An order under this part may be granted to any person
32described in Section 6211, including a minor pursuant to
33subdivision (b) of Section 372 of the Code of Civil Procedure.

34(b) The right to petition for relief shall not be denied because
35the petitioner has vacated the household to avoid abuse, and in the
36case of a marital relationship, notwithstanding that a petition for
37dissolution of marriage, for nullity of marriage, or for legal
38separation of the parties has not been filed.

begin insert

P5    1(c) The court shall not deny an order under this part solely
2because of the length of time between an act of abuse and the filing
3of the petition for the restraining order.

end insert
4

SEC. 7.  

Section 6305 of the Family Code is amended to read:

5

6305.  

begin insert(a)end insertbegin insertend insert The courtbegin delete mayend deletebegin insert shallend insert not issue a mutual order
6enjoining the parties from specific acts of abuse described in
7Section 6320begin delete (a)end delete unless bothbegin delete partiesend deletebegin insert of the following apply:end insert

8begin insert(1)end insertbegin insertend insertbegin insertBoth partiesend insert personally appear and each party presents
9written evidence of abuse or domesticbegin delete violence and (b) theend deletebegin insert violence.end insert

10begin insert(2)end insertbegin insertend insertbegin insertTheend insert court makes detailed findings of fact indicating that
11begin delete both parties acted primarily as aggressorsend deletebegin insert neither party acted as
12a dominant aggressorend insert
and that neither party acted primarily in
13self-defense.

14begin insert(b)end insertbegin insertend insertbegin insertFor purposes of subdivision (a), the dominant aggressor is
15the person determined to be the most significant aggressor. In
16identifying the dominant aggressor, the court shall consider the
17intent of the law to protect victims of domestic violence from
18continuing abuse, the threats creating fear of physical injury, the
19history of domestic violence between the persons involved, and
20whether either person involved acted in self-defense.end insert

21

SEC. 8.  

Section 6340 of the Family Code is amended to read:

22

6340.  

(a) The court may issue any of the orders described in
23Article 1 (commencing with Section 6320) after notice and a
24hearing. When determining whether to make any orders under this
25subdivision, the court shall consider whether failure to make any
26of these orders may jeopardize the safety of the petitioner and the
27children for whom the custody or visitation orders are sought. If
28the court makes any order for custody, visitation, or support, that
29order shall survive the termination of any protective order. The
30Judicial Council shall provide notice of this provision on any
31Judicial Council forms related to this subdivision.

begin insert

32(b) The court shall, upon the request of any party, issue a
33 statement of decision explaining the factual and legal basis for its
34decision under this part pursuant to Section 632 of the Code of
35Civil Procedure. If neither party requests a statement of decision,
36and the trial court denies a petition under this part, it shall state
37its reasons in writing or on the record.

end insert
begin delete

38(b)

end delete

39begin insert(c)end insert The court may issue an order described in Section 6321
40excluding a person from a dwelling if the court finds that physical
P6    1or emotional harm would otherwise result to the other party, to a
2person under the care, custody, and control of the other party, or
3to a minor child of the parties or of the other party.

4

SEC. 9.  

Section 6345 of the Family Code is amended to read:

5

6345.  

(a) In the discretion of the court, the personal conduct,
6stay-away, and residence exclusion orders contained in a court
7order issued after notice and a hearing under this article may have
8a duration of not more than five years, subject to termination or
9modification by further order of the court either on written
10stipulation filed with the court or on the motion of a party. These
11orders may be renewed, upon the request of a party, either for five
12years or permanently, without a showing of any further abuse since
13the issuance of the original order, subject to termination or
14modification by further order of the court either on written
15stipulation filed with the court or on the motion of a party. The
16request for renewal may be brought at any time within the three
17months before the expiration of the orders.

18(b) Notwithstanding subdivision (a), the duration of any orders,
19other than the protective orders described in subdivision (a), that
20are also contained in a court order issued after notice and a hearing
21under this article, including, but not limited to, orders for custody,
22visitation, support, and disposition of property, shall be governed
23by the law relating to those specific subjects.

24(c) The failure to state the expiration date on the face of the
25form creates an order with a duration ofbegin delete threeend deletebegin insert fiveend insert years from the
26date of issuance.

27(d) If an action is filed for the purpose of terminating or
28modifying a protective order prior to the expiration date specified
29in the order by a party other than the protected party, the party
30who is protected by the order shall be given notice, pursuant to
31subdivision (b) of Section 1005 of the Code of Civil Procedure,
32of the proceeding by personal service or, if the protected party has
33satisfied the requirements of Chapter 3.1 (commencing with
34Section 6205) of Division 7 of Title 1 of the Government Code,
35by service on the Secretary of State. If the party who is protected
36by the order cannot be notified prior to the hearing for modification
37or termination of the protective order, the court shall deny the
38motion to modify or terminate the order without prejudice or
39continue the hearing until the party who is protected can be
40properly noticed and may, upon a showing of good cause, specify
P7    1another method for service of process that is reasonably designed
2to afford actual notice to the protected party. The protected party
3may waive his or her right to notice if he or she is physically
4present in court and does not challenge the sufficiency of the notice.



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