BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 494 (Maienschein)
Version: May 18, 2015
Hearing Date: June 9, 2015
Fiscal: No
Urgency: No
NR
SUBJECT
Restraining orders: protection of animals
DESCRIPTION
This bill would authorize the court, on a showing of good cause,
to include in a civil protective or restraining order, as
specified, an order:
granting the petitioner exclusive care, possession, or control
of an animal that is held by a person protected by a
restraining order, or that resides in the same residence as a
person protected by a restraining order; and
instructing the respondent or restrained person to stay away
from the animal, and refrain from taking or harming the
animal, as specified.
BACKGROUND
In response to news articles describing the use of pets by
abusers to control their victims, such as threatening to hurt an
animal if a victim were to leave an abusive situation, the
Legislature enacted AB 353 (Kuehl, Chapter 205, Statutes of
2007) which authorized courts to include protections for animals
in domestic violence restraining orders. Domestic violence
refers to abuse perpetrated against a spouse, former spouse,
cohabitant or former cohabitant, or a person with whom the
alleged abuser is having or has had a dating relationship, or a
child of the alleged abuser. (Fam. Code Sec. 6211)
However, there are many relationships outside a "domestic"
situation where individuals may seek a protective order from the
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court. Stalking, for example, is a crime of power and control.
Stalking is defined as "a course of conduct directed at a
specific person that involves repeated visual or physical
proximity, nonconsensual communication, or verbal, written, or
implied threats, or a combination thereof, that would cause a
reasonable person fear." (Tjaden, Patricia and Nancy Thoennes.
Stalking in America: Findings From the National Violence Against
Women Survey. Washington, DC: U.S. Department of Justice,
National Institute of Justice, 1998, NCJ 169592.U.S.) Stalking
may also include leaving or sending the victim unwanted items or
presents, following or lying in wait for the victim, damaging or
threatening to damage the victim's property, or otherwise
harassing the victim. Elders and dependent adults are also
vulnerable to abuse, both physical and financial, from
caretakers, family, and others who wish to abuse and/or extort a
vulnerable adult. Finally, juvenile dependents and wards, many
who have been removed from their homes because of abuse or
neglect, often require protection from the court.
This bill, seeking to protect individuals outside of domestic
violence situations who may seek protective orders, would
expressly authorize the court to include animals in those
restraining orders.
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 authorizes a court to issue protective orders ex
parte and/or after a noticed motion and a hearing. (Fam. Code
Secs. 6320, 6340.)
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Existing law authorizes a court, upon a showing of good cause,
to include in a domestic violence prevention order, a grant to
the petitioner of the exclusive care, possession, or control of
any animal owned, possessed, leased, kept, or held by either the
petitioner, respondent, household, or minor child in the
residence. Existing law further allows the court to order the
respondent to stay away from the animal and forbid the
respondent from taking, transferring, encumbering, concealing,
molesting, attacking, striking, threatening, harming, or
otherwise disposing of the animal. (Fam. Code Sec. 6320(b).)
Existing law permits a person who has suffered civil harassment
to seek a temporary restraining order or an injunction
prohibiting the civil harassment. (Code Civ. Proc. Sec. 527.6
(a).)
Existing law defines "harassment" as unlawful violence, a
credible threat of violence, or a knowing and willful course of
conduct directed at a specific person that seriously alarms,
annoys, or harasses the person and serves no legitimate purpose.
(Code Civ. Proc. Sec. 527.6 (b)(3).)
Existing law defines "temporary restraining order" and
"injunction" to mean orders that include any restraining order
enjoining a party from harassing, intimidating, molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, abusing, telephoning, including but not limited to,
making annoying telephone calls, destroying personal property,
contacting either directly or indirectly, by mail or otherwise,
or coming within a specified distance of, or disturbing the
peace of, the petitioner, or any order enjoining a party from
specified behavior that is necessary to effectuate such
restraint. (Code Civ. Proc. Sec. 527.6 (b)(6).)
Existing law allows a juvenile court to issue a protective order
on behalf of a dependent child or a ward of the state for a
duration of up to three years. (Welf. & Inst. Code Sec. 213.5.)
Existing law allows a court to issue a protective order on
behalf of an elder or dependent adult for a duration of up to
three years. (Welf. & Inst. Code Sec. 15657.03.)
This bill would allow a court, on a showing of good cause, to
include in a protective order on behalf of a dependent adult,
elder, juvenile dependent or ward, or a protective order
prohibiting harassment, the following:
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an order for exclusive care, possession, or control of any
animal owned, possessed, leased, kept, or held by the
petitioner, or residing in the residence or household of the
person protected by the restraining order; and/or
an order to the respondent or person being restrained to stay
away from the animal and refrain from taking, transferring,
encumbering, concealing, molesting, attacking, striking,
threatening, harming, or otherwise disposing of the animal.
COMMENT
1.Stated need for the bill
According to the author:
In 2007, the Domestic Violence Prevention Act was amended to
enable courts to add protection for companion animals in
domestic violence restraining orders. However, the companion
animal section of the Act does not apply to all forms of
restraining orders. AB 494 will extend protections to
companion animals of protected parties in restraining orders
issued in juvenile dependency cases, civil harassment cases,
and Elder Abuse cases. Civil harassment orders are often
utilized by persons who are being stalked or were sexually
assaulted by a non-intimate partner, or by persons who are
being harassed by a neighbor. These individuals may have pets
that also need protection from the person to be restrained.
2.Would protect persons vulnerable to abuse from threats of
violence against their animals
Existing law includes express authorization to protect animals
in domestic violence protective orders issued under the Family
Code. Domestic violence protective orders generally cover
individuals who are, or were, living together as a family or are
otherwise in a romantic relationship. Persons who would not be
able to petition for a domestic violence protective order could
include an elder who is seeking protection from a caretaker or
neighbor, a foster child who is seeking protection from the
romantic partner of his parent with whom the child never
resided, or a young woman seeking protection from a stalker with
whom she has never had a romantic relationship. This bill would
expressly provide that animals may be included in civil
protective orders for harassment, or civil protective orders
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issued for the protection of juvenile dependents, wards, or
elders.
By extending this authorization to other types of protective
orders, this bill would ensure that victims of harassment,
stalking, and elder abuse could protect their animals from
persons who would otherwise injure or take an animal to control
the victim. FLEXCOM, sponsor of this bill, writes:
There are currently several other types of restraining orders
issued to protect children or adults who are abused or stalked
that do not allow for the protection of pets. Civil harassment
orders are often used to protect victims of stalking or sexual
assault when the person stalking them is not an intimate
partner. Restraining orders in juvenile dependency cases are
used to protect children or parents who are abused by the
other parent. Elder and dependent abuse restraining orders can
be used to protect elders and dependent adults from abuse by a
caretaker or non-family member. The pets of protected parties
in those cases are as much at risk as pets in Domestic
Violence Prevention Act cases.
This bill will extend protections to companion animals of
protected parties in restraining orders issued in juvenile
dependency and delinquency cases (Welfare & Institutions Code
Section 213.5), civil harassment cases (Civil Procedure
Section 527.6(b)(6)), and Elder Abuse cases (Welfare &
Institutions Code Section 15657.03). This bill will bring all
types of restraining orders in alignment with the protections
provided pursuant to the Domestic Violence Prevention Act.
Both pets and their abused guardians will be safer if pet
protections can be expanded to these other categories of
restraining orders.
Staff notes that current law allows the court to prohibit a
respondent from interfering with a victim's "property" in a
protective order, and under California law animals are
considered property. Thus, the ability to include animals in
protective orders arguably exists within the current system.
However, creating an express authorization to include pets in
all civil protective orders will arguably aid self-represented
litigants who may be unaware that pets are treated as property
under California law.
3.All "animals" to be included
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As noted above, this bill would allow animals to be included
within the scope of a civil harassment restraining order, in
juvenile ward and dependency protective orders, and in elder and
dependent adult protective orders. As the term is not
specifically defined in the bill, "animal" would encompass
virtually any possible pet that may be threatened by an abuser.
In defining "animal," American Jurisprudence, Second Edition,
states that generally ". . . in the language of the law, the
word 'animal' is used to mean all animal life other than humans
. . ." and Section 16302 of the Food and Agricultural Code
Section includes "any domestic bovine animal, horse, mule,
burro, sheep, goat, or swine . . ." within the definition of
animal.
Thus, that term would cover not only household dogs or cats, but
even a dairy cow or prized racehorse. From a public policy
standpoint, that broad definition appears appropriate due to the
various animals that may be used by an abuser to control his or
her victims. While the definition could also include a valuable
leased animal, such as a show dog or racehorse, the requirement
of court approval upon a showing of good cause provides a layer
of protection to prevent the use of the provisions to gain
control over valuable animals absent sufficient justification.
4.Types, and duration of domestic violence protective orders and
the effects of including family pets within those orders
Depending on type, domestic violence protective orders may last
days, weeks, years, or even permanently. Emergency protective
orders, issued by a judicial officer upon specific assertions by
a law enforcement officer, expire on the earliest of the fifth
court day, or seventh calendar day following issuance. In
contrast, requests for temporary restraining orders (TROs) are
filed with the court and become effective upon receiving a
judge's signature and being served on the batterer. TROs may be
granted ex parte, without formal notice to, or presence of the
batter, and are issued or denied on the date of application,
unless the application is filed too late to permit effective
review. (Fam. Code Sec. 6326.) TROs are generally effective
for 21 days or until a hearing on the matter. After proper
notice and hearing, a restraining order may be granted for up to
five years, subject to future modification. At that hearing,
the petitioner must make a showing of past acts of abuse and the
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likelihood of continuing abusive conduct on the respondent's
part. Upon request, that order may be renewed for another five
years, or permanently. (Fam. Code Sec. 6345.)
In addition to ordering the respondent to stay away from the
animal in question, this bill would allow a court to include a
grant of care, custody or control over that animal. Due to the
requirement of showing good cause, initial grants of care and
orders to stay away from an animal would likely be placed within
ex-parte TROs. While supporters maintain that the emotional
connection between a victim and her pet is used by abusers to
control their victims, an alleged abuser may also feel strongly
connected to a jointly owned pet. Although somewhat mitigated
by the requirement of showing good cause, there remains a
potential for ex parte orders to be abused by a party to
unjustly remove a beloved pet from a victim. In that case, a
party would be highly motivated to contest the ex parte order
depriving them of custody of that animal. At the subsequent
noticed motion and hearing, held within 21 days, the parties
would have full opportunity to dispute the initial ex-parte
order for exclusive care, custody, or control of the family pet.
Finally, while the duration of protective orders relating to
personal conduct, stay-away, and residence exclusion are subject
to the provisions allowing for a duration of five years, and in
some cases, indefinitely, provisions of an order are also
governed by the law relating to that specific provision. (See
Fam. Code Sec. 6345(b).) Thus, the duration of any order
granting exclusive care or control of an animal would arguably
be governed by the laws relating to disposition of property,
which would serve to protect interests in valuable animals, such
as leased racehorses.
Support : American Society for the Prevention of Cruelty to
Animals (ASPCA); California District Attorneys Association;
California Animal Control Directors Association; California
Partnership to End Domestic Violence; City and County of San
Francisco; Humane Society of the United States; one individual
Opposition : None Known
HISTORY
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Source : Executive Committee of the Family Law Section of the
State Bar
Related Pending Legislation : None Known
Prior Legislation : AB 353 (Kuehl, Chapter 205, Statutes of 2007)
See Background.
Prior Vote :
Assembly Floor (Ayes 79, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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