BILL ANALYSIS Ó
AB 2089
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2089 (Quirk) - As Amended: April 10, 2014
SUBJECT : DOMESTIC VIOLENCE: PROTECTIVE ORDERS
KEY ISSUE : SHOULD THE DOMESTIC VIOLENCE PREVENTION ACT BE
STRENGTHENED AND UPDATED, TO REDUCE AMBIGUITIES AND INCONSISTENT
APPLICATION, IN ORDER TO BETTER PROTECT VICTIMS AND THEIR
CHILDREN?
SYNOPSIS
This bill, sponsored by the California Partnership to End
Domestic Violence and supported by numerous domestic violence
and law enforcement groups, seeks to update and strengthen
protections for victims of domestic violence in the Domestic
Violence Prevention Act. Among other things, this bill provides
that a protective order may be issued based on evidence of past
acts of abuse without any showing that the wrongful acts will
continue or be repeated, clarifies when an order must be issued
based on the length of time from last abuse, clarifies when
mutual restraining orders are to be granted, and requires a
court, upon approving or denying a protective order, to state
its reasons in writing or on the record. Supporters, including
the California Police Chiefs Association, write that
"restraining orders are a critical component in the response to
domestic violence. They have proven to save lives and help
victims regain their sense of safety. . . . AB 2089 makes
several important changes to the DVPA to provide clarity and
reduce inconsistencies."
The Family Law Section of the State Bar and the Association of
Certified Family Law Specialists both support the bill if
amended to, among other things, give judges more discretion to
decide whether to issue protective orders based on the passage
of time since last act of violence. However, the author and
supporters note that the bill is seeking to reduce
inconsistencies between judges and courts, and to increase
safety for victims and their children. They believe that the
proposed amendments would further increase those inconsistencies
and could prevent courts from issuing critically needed
protective orders.
AB 2089
Page 2
The Judicial Council opposes that last provision, arguing that
requiring the court to state its reasons for granting or denying
a restraining order in writing or on the record will
significantly increase judges' workload because there are no
court reporters in many family law proceedings. However,
supporters argue that the lack of critically needed court
reporters in family law proceedings just underscores the need
for more information to be in writing if there is no record of
the proceedings and thus provides further, not less, support for
this provision of the bill.
SUMMARY : Revises and clarifies the issuance of domestic
violence restraining orders under the Domestic Violence
Protective Act (DVPA). Specifically, this bill :
1)States that the purpose of the DVPA is to provide 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.
2)Provides that abuse is not limited to the actual infliction of
physical abuse or assault.
3)Provides that a court may issue a restraining order based
solely on the affidavit or testimony of the person requesting
the order. Provides that an order may be issued on the basis
of past abuse without any showing that the wrongful acts will
be continued or repeated.
4)Provides that a court may not deny an order under the DVPA,
based in whole or in part, (a) on the length of time between
the issuance of the ex parte order and the hearing on the
permanent order; or (b) the absence of abuse during that time.
Provides that a court may not deny an order under the DVPA
based solely on the length of time since the last abuse if the
last abuse occurred within five years of filing the petition
for the restraining order. If the last incident of abuse
occurred more than five year prior to the filing, allows the
court to issue an order under the DVPA.
5)Prohibits a court from issuing mutual restraining orders
unless the court finds that (a) both parties personally appear
and present written evidence of abuse, and (b) the court makes
detailed findings indicating that both parties acted as a
AB 2089
Page 3
dominant aggressor, as defined, and that neither party acted
primarily in self-defense. Provides that the change from
"primary aggressor" to "dominant aggressor" is not intended to
impact existing case law and that existing case law should
apply equally, regardless of which term is used.
6)Requires a court, upon approving or denying an order under the
DVPA, to state its reasons in writing or on the record.
7)Provides that if a permanent restraining order does not have
an expiration date, that order shall be valid for five years.
8)States the intent of the Legislature that:
a) Every person has a right to be safe and free from
violence and abuse;
b) Domestic violence is a pervasive public safety and
public health problem that affects people of all income
levels, cultures, religions, ages, ethnic backgrounds,
sexual orientations, and neighborhood;
c) Domestic violence is not limited to actual and
threatened physical acts of violence, but also includes
sexual abuse, stalking, psychological and emotional abuse,
financial control, property control, and other behaviors by
the abuser that are designed to exert coercive control and
power over the victim;
d) There is a positive correlation between domestic
violence and child abuse, and children, even when they are
not physically assaulted, suffer deep and lasting
emotional, health, and behavioral effects from exposure to
domestic violence.
e) Domestic violence victims face significant barriers to
safely leaving an abusive relationship, including risk of
retaliation, concerns over the safety of their children,
loss of financial support and housing, and difficulties
accessing legal and community systems to seek protection
from abuse;
f) Studies have shown that obtaining a civil protective
order against an abuser can increase a victim's safety;
g) Public money spent on protective order intervention
produces significant cost savings to society;
h) Civil protective orders are most effective when they
offer comprehensive relief to address the various barriers
victims face when safely separating from an abuser, are
specific in their terms, and are consistently enforced; and
AB 2089
Page 4
i) The effective issuance and enforcement of civil
protective orders are of paramount importance in the State
of California.
EXISTING LAW :
1)Authorizes, under the DVPA, a court to issue and enforce a
domestic violence restraining order, including an emergency
protective order (EPO), a temporary restraining order (TRO)
and a permanent restraining order. (Family Code Sections
6300 et seq. Unless stated otherwise, all further statutory
references are to that code.)
2)States that the purposes of the DVPA are to prevent the
recurrence of acts of violence and sexual abuse and to provide
for a separation of those involved in the domestic violence
for a period sufficient to enable them to seek a resolution of
the causes of the violence. Provides that a court may issue
an order under the DVPA for the purpose of preventing a
recurrence of domestic violence and ensuring a period of
separation of the persons involved. (Sections 6220 and 6300.)
3)Provides that an order under the DVPA shall not be denied
because the petitioner has vacated the household to avoid the
abuse or filed for dissolution or legal separation. (Sections
6301.)
4)Prohibits a court from issuing a mutual restraining order,
unless (a) both parties personally appear and present written
evidence of abuse and (b) the court makes detailed findings
indicating that both parties acted primarily as aggressors and
that neither party acted primarily in self-defense. (Section
6305.)
5)Defines, under the Penal Code, dominant aggressor in domestic
violence, as the person determined to be the most significant,
rather than the first, aggressor. In identifying the dominant
aggressor, consideration must be given to (a) the intent of
the law to protect victims of domestic violence from
continuing abuse; (b) the threats creating fear of physical
injury; (c) the history of domestic violence between the
persons involved; and (d) whether either person involved acted
in self-defense. (Penal Code Sections 836(c) and 13701(b).)
AB 2089
Page 5
6)Provides that a permanent order made after hearing under the
DVPA may have a duration of no more than five years, subject
to termination or modification. An order may be renewed, upon
request of either party, for either five years or permanently,
without a showing of any further abuse since issuance of the
original order. (Section 6345.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill, sponsored by the California Partnership to
End Domestic Violence, seeks to update and strengthen
protections violence in the Domestic Violence Prevention Act to
better protect victims of domestic. In support of the bill, the
author writes:
The Domestic Violence Prevention Act . . . contains some of
the strongest and most comprehensive laws pertaining to
restraining orders in the country. However, years of
updates and amendments to the DVPA have led to ambiguities
in the statute, resulting in inconsistent interpretations
among courts about how and when a domestic violence
restraining order should be issued. The current statute is
often confusing and its application can vary from courtroom
to courtroom and county to county. . . .
Domestic violence takes a devastating toll on victims,
their families and their communities. . . . Restraining
orders are an essential component of the state's response
to domestic violence, and have the ability to make a
tremendous positive impact on a survivor's life and safety.
Issues with the DVPA were recently highlighted in the
Farmer v Totah (2012) unpublished California appellate
decision. The court found that the husband had committed
acts of domestic violence against his wife. The wife was
issued a TRO. However, the Court denied her a [permanent
restraining order] based on findings that the husband had
not violated the TRO and that future violence was unlikely
to occur because the parties were nearing the end of their
divorce case and most of the contentious issues they faced
had been resolved.
Devastating Effects of Domestic Violence on Children and
Families : Domestic violence is a serious criminal justice and
AB 2089
Page 6
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
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).)
Bill Seeks to Better Protect Victims of Domestic Violence and
Their Families in Several Key Ways : This bill seeks to address
the devastating effects of domestic violence by better
protecting victims and their families through the restraining
AB 2089
Page 7
order process. In particular, the bill makes the following key
changes:
Restates the Purposes of the DVPA to Protect Victims and Their
Children: Currently, the law states that the purpose of the
DVPA is to prevent the recurrence of acts of violence and sexual
abuse and to provide for a separation of those involved in the
domestic violence for a period sufficient to enable them to seek
a resolution of the causes of the violence. However, that
somehow implies that with separation, parties will be able to
resolve the causes of violence in their relationship. That may
well not be true and the only way to prevent violence and
protect victims and their families may be to separate abusers
from their victims.
This bill recognizes that reality by restating the purpose of
the DVPA is to provide 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 also contains important statements of
legislative intent on the devastating effects of domestic
violence on victims and their children and the importance of
civil protective orders in keeping them safe.
Provides That an Order May be Based on Past Acts of Abuse Alone:
The bill specifically provides that a protective order may be
issued based on evidence of past acts of abuse without any
showing that the wrongful acts will continue or be repeated.
This is consistent with case law (see, e.g., Eneaji v. Ubboe
(2014) 224 Cal.App.4th 1069) and better protects victims of
violence.
The Family Law Section of the State Bar supports the bill if
amended to require that a support order may only be issued if
the past acts of abuse place a person in reasonable apprehension
of future abuse. However, the author counters that the language
is consistent with current practice and case law, and that the
proposed amendment could make it more difficult for victims to
get needed protective orders.
Clarifies When an Order Should be Made, Based on the Length of
Time From Last Abuse: Currently there is some disagreement
among courts about how recent the last act of violence must be
in order to obtain a protective order. Apparently, according to
supporters, some courts are refusing to issue protective orders,
AB 2089
Page 8
claiming too much time has transpired since the last act of
violence, when only weeks or months have occurred since that
last violent act. Other courts, apparently, have even denied
permanent orders because too much time has transpired between
the TRO and the hearing on the permanent order, even if the
court's budget woes may have inadvertently helped exacerbate
those delays. These courts may not fully appreciate the risks a
victim takes when seeking a protective order and may wait years,
until he or she has finally ended a violent relationship for
good, before seeking needed legal protection.
To address these concerns, the bill does two things. First it
makes clear that a court may not deny a permanent protective
order, based in whole or in part, on either (a) on the length of
time between the issuance of the ex parte order and the hearing
on the permanent order; or (b) the absence of abuse during that
time. Second, the bill provides a bright line at five years
since the last act of abuse occurred. If a protective order is
sought within that five-year period, a court may not deny the
order based solely on the length of time since the last abuse.
The court can, however, deny the order otherwise, as
appropriate. If the last incident of abuse was more than five
years prior to seeking the order, the bill provides the court
with discretion to issue a protective order, but also permits a
court to deny the order based solely on the length of time since
the last act of abuse.
Both the Association of Certified Family Law Specialists and the
Family Law Section of the State Bar support the bill if
amendments are made to give judges more discretion about whether
to issue protective orders. These groups argue that the
five-year standard is arbitrary and that judges should be given
maximum discretion "to consider all of the facts and
circumstances that are presented - including the passage of
time." However, the author argues persuasively that the bill is
seeking to reduce inconsistencies between judges and courts, and
the proposed amendments would actually further increase those
inconsistencies. The author believes that such inconsistencies
could prevent courts from issuing critically needed protective
orders and thus endanger victims and their children.
Duration of Protective Orders Without Stated Expiration Date:
Originally protective orders issued after a hearing could last
for no longer than three years. At the time, the statute also
provided that in the absence of an expiration date, an order
AB 2089
Page 9
would last three years - the maximum duration. The maximum
duration for a protective order was extended to five years by AB
99 (Cohn), Chap. 125, Stats. 2005, but that bill failed to
extend the duration for orders without an expiration date from
three years to five years. This bill does just that.
Mutual Restraining Orders: In order to get a mutual restraining
order, the court must, among other things, make detailed
findings that both parties acted primarily as the aggressor.
However, the Penal Code uses the term "dominant aggressor" in
these instances. In order to create better clarity between the
codes, this bill changes the term primary aggressor to dominant
aggressor, but makes clear that the change in terms is not
intended to impact any case law.
The Bill Also Helps Ensure That Victims, Most of Whom are
Unrepresented, Can Understand Why Their Request for a Protective
Order is Granted or Denied : Current law requires that an order
denying a temporary protective order must include the reasons
for denying the petition. (Section 6320.5.) That requirement
came in response to a trial court's decision to deny a
jurisdictionally valid request for a domestic violence TRO, with
no explanation beyond that provided by the following statement
rubber-stamped on the face of the victim's application: "The
undersigned judicial officer has read and reviewed the attached
application and declaration for order. The facts set forth do
not provide a legal basis to issue the order requested and the
application is therefore denied." The appellate court, in
reversing the trial court, called the unexplained response
"highly imprudent," and declared that judges statewide should at
least explain their reasoning if they deny a domestic violence
victim's request for a temporary restraining order that was
backed up with written allegations of injuries, threats or
harassment. The court concluded that an unexplained denial "may
well stimulate the continuing domestic abuse that the (law) was
specifically designed to prevent" and lead victims to believe
they have no recourse. (Nakamura v. Parker (2007) 156 Cal.
App.4th 3327.)
This bill seeks to extend this same important protective policy
to orders after hearing to ensure that both petitioners and
respondents, almost all of whom are unrepresented by counsel,
understand why the court has made its order. Thus, the bill
requires a court, upon approving or denying an order after
hearing under the DVPA, to state its reasons in writing or on
AB 2089
Page 10
the record. This allows both parties to know what just happened
and allows for an appeal, if necessary. The requirement that
the court state its reasoning in writing or on the record is
similar to 10 other Family Code provisions involving custody,
child support and premarital agreements. This does not require
that a court do a lengthy order. It simply requires that the
court state its reasoning either in open court, with a court
reporter present or, at least, in the minute order.
Judicial Council Opposes This Provision of the Bill: The
Judicial Council opposes this requirement because of the impact
it will have on "bench officers, especially for courts that lack
court reporters." Unfortunately, the dire lack of critically
needed court reporters in family law proceedings, supporters
argue, just underscores the need for more information to be in
writing if there is no record of the proceedings and thus
provides further, not less, support for this provision of the
bill.
Dire Need for Court Reporters in Family Law Proceedings: As a
result of the recession and the state budget crisis, trial
courts' budgets have been reduced substantially. One of the
impacts of the budget reductions is that more than 30 courts
report they have no longer provide court reporters for, among
others, family law proceedings. In those courts, parties who
wish to have an official record of proceedings must hire and pay
the substantial cost of providing their own private court
reporter. Without a transcript of court proceedings, litigants
are unable generally to appeal decisions, parties may be unable
to draft orders effectively, and those attempting to recount
what actually happened during proceedings are unable to so with
any degree of accuracy. In addition, the Commission on Judicial
Performance believes that the lack of records of court
proceedings impedes the Commission "in determining that
misconduct has occurred and in protecting the public from
abusive judges." (Letter from Victoria Henley to Governor
Brown, Supreme Court Chief Justice Cantil- Sakauye, Speaker
Pérez and Senate President Pro Tempore Steinberg (Feb. 29,
2012).)
Just a few years ago, the Judicial Council's Elkins Family Law
Task Force recommended "a complete and accurate record" in all
family law proceedings. That Task Force found that access to
"the record in family law is a serious access-to-justice issue
and must be significantly improved both to ensure that parties
AB 2089
Page 11
understand and can finalize the court's orders and to ensure
that the parties' right to appeal is protected. Parties'
current inability to access the record in their family law
proceedings is an area of long-standing concern. This inability
to have an accurate record of their family law cases makes the
ability of family law litigants to appeal too often illusory."
(Judicial Council's Elkins Family Law Task Force, Final Report
and Recommendations, p. 80 (April 2010.))
Thus, instead of seeking to eliminate or narrow the requirement
that courts explain their reasoning in granting or denying
domestic violence protective orders, it may be more appropriate
to work to ensure that there are court reporters in all family
law proceedings, including proceedings under the DVPA, to
protect families and children and preserve their due process
rights. Ensuring court reporters are present should eliminate
the burden on judges of having to state their reasons for
granting or denying protective orders.
ARGUMENTS IN SUPPORT : The California Police Chiefs Association
and other groups support the bill's amendments to the DVPA
because they provide "important changes to the outdated act to
reflect the current understanding and application of restraining
orders." In addition:
Domestic violence is a serious issue that impacts victims,
their families, and communities across California. It is
also an intricate and complex issue because the power and
control exerted over the victim can be sexual, physical,
emotional and/or psychological. One in four women will
experience some form of domestic violence in her lifetime.
Restraining orders are a critical component in the response
to domestic violence. They have proven to save lives and
help victims regain their sense of safety. . . . AB 2089
makes several important changes to the DVPA to provide
clarity and reduce inconsistencies.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence (sponsor)
A Better Way
Association of Certified Family Law Specialists (if amended)
AB 2089
Page 12
California District Attorneys Association
California Police Chiefs Association
Casa de Esperanza
Center for Domestic Peace
Community Solutions
Family Law Section of the State Bar (if amended)
Family Violence Appellate Project
Family Violence Law Center
Haven Women's Center of Stanislaus
Human Options
Humboldt Domestic Violence Services
Jewish Family Services of Los Angeles
Kene Me-Wu Family Healing Center
Laura's House
Los Angeles Center for Law and Justice
Marjaree Mason Center
Next Door Solutions to Domestic Violence
One Safe Place
Peace Over Violence
RISE San Luis Obispo County
Ruby's Place
San Francisco Department on the Status of Woman
Shepherd's Door Domestic Violence Resource Center
Women's Center-Youth & Family Services
Opposition
Judicial Council (unless amended)
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334