BILL ANALYSIS Ó
AB 494
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
494 (Maienschein)
As Amended August 17, 2015
Majority vote
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|ASSEMBLY: | 79-0 | (April 16, |SENATE: |38-0 | (September 1, |
| | |2015) | | |2015) |
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Original Committee Reference: JUD.
SUMMARY: Enables courts to include protections for companion
animals in restraining orders sought by persons who fear for the
safety of themselves and their animals and apply for civil
harassment and other types of protective orders. Specifically,
with respect to restraining orders in certain civil harassment
cases, juvenile dependency cases, and elder abuse cases, this bill
allows a court, upon a showing of good cause, to include in the
restraining order one or both of the following:
1)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.
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2)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.
The Senate amendments establish chaptering-out language to avoid
potential conflict with AB 1081 (Quirk) of the current legislative
session and SB 196 (Hancock) of the current legislative session.
FISCAL EFFECT: None
COMMENTS: In 2007, the Legislature enacted legislation
authorizing courts to include protections for companion animals of
persons who are protected by domestic violence restraining orders
(AB 353 (Kuehl), Chapter 205, Statutes of 2007). AB 353 amended
the Domestic Violence Prevention Act, to specifically authorize
the court, upon a showing of good cause, to include in a domestic
violence prevention order an order to grant the petitioner
exclusive care or possession of the companion animal and to order
the respondent to stay away from the companion animal and refrain
from taking or harming the animal. AB 353 did not, however,
enable the animal protection provisions to be applied in other
types of restraining orders.
This bill, sponsored by the Family Law Section of the State Bar
(Flexcom), seeks to extend the protections established by AB 353
to restraining orders that may be sought in civil harassment
cases, juvenile dependency cases, and elder abuse cases.
According to the National Council of Juvenile and Family Court
Judges, "The threat, or actual use, of violence against family
pets is part of the dynamic of family violence - a dynamic that
includes not only the spouse and the batterer, but also the
children, elderly relatives, and the family pet(s). Animals are
often used by the abuser to punish or manipulate, as well as to
take revenge against, the victim." (Ramsey, Randour, and Gupta,
"Protecting Domestic Violence Victims by Protecting Their Pets."
Juvenile and Family Justice Today, National Council of Juvenile
and Family Court Judges, Volume 19, part 2 (Spring 2010).)
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Multiple studies have found that as many as 71% of battered women
reported that their pets had been threatened, harmed, or killed by
their partners. (See, e.g. Ascione, Weber, and Wood, "The Abuse
Of Animals And Domestic Violence: A National Survey Of Shelters
For Women Who Are Battered." Society and Animals, Volume 5(3),
1997.)
In support of this bill, the author states:
As animal abuse is often correlated with family
violence, many people who abuse their family members and
intimate partners also threaten, injure or kill their
victims' pets, as an effective way to intensify the
effects of their abusive behavior. AB 494 seeks to
bring other sections of state law up to par with the
Domestic Violence Prevention Act by allowing judicial
officers in all types of restraining orders to protect
companion animals. AB 494 will help abused elders,
abused children and stalking victims to ensure the
safety and the wellbeing of their pets after a
restraining order has been granted.
Background on Protective Orders and the Effect of Including
Animals Within Those Orders. Depending on the type of order
applied for, 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 the 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 batterer and are
issued or denied on the date of application, unless the
application is filed too late to permit effective review. 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
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of abuse and the likelihood of continuing abusive conduct on the
respondent's part. Upon request, that order may be renewed for
another five years, or permanently.
Showing of Good Cause Required. Recent amendments clarify that a
showing of good cause is necessary for the court to include
protections for an animal in an ex parte restraining order covered
by this bill. Ex parte orders, such as civil harassment
protection orders, are temporary orders pending a formal hearing
and generally only are ordered if quick action, often without
notice to the other party, is required. Because ex parte orders
are generally granted at the request of one party, without the
other parties to the action present, and are an exception to the
basic rule of court procedure that both parties must be present at
any argument before the court, there are often due process
concerns about the rights of the party not present. In order to
mitigate these concerns, this bill provides that, for each type of
ex parte order covered by this bill, a petitioner cannot gain
custody of the animal or compel the respondent to stay away from
the animal without a showing of good cause. This bill is
consistent with existing law, Family Code Section 6320, which
already requires good cause to be shown before the court may
incorporate animal protection measures into a domestic violence
restraining order.
In short, the court must find good cause before issuing an ex
parte TRO that includes protections for the animal. At the
subsequent noticed motion and hearing, held within 21 days, the
respondent would still have the opportunity to dispute the initial
ex parte order for exclusive care, possession, or control of the
animal, or an order to stay away.
Animal Protections Are Available Only When Included in an
Underlying Restraining Order. With respect to domestic violence
restraining orders under Family Code Section 6320, the court "may
include in a protective order" a grant of possession or control of
an animal, or an order to the respondent to stay away from the
animal or refrain from harming it. Proponents agree that this
existing section of law does not allow the petitioner to seek a
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stand-alone order protecting only the companion animal, but only
allows a court to include protections for the animal in the
underlying protective order already at issue. According to the
author, this bill is not intended to allow a stand-alone order for
custody of an animal or to stay away from the animal, unless there
is an underlying restraining order protecting the petitioner or
other protected party. Accordingly, recent amendments clarify
that this bill authorizes protections for animals only when they
are included in an underlying restraining order, specifically
those issued in cases involving civil harassment, juvenile wards
and dependents, or elder abuse.
Specific Provisions to Protect Animals May Ease the Process for
Self-Represented Parties. Because American and Californian
jurisprudence generally views animals as personal property, it is
arguable that existing law already allows a petitioner to seek
protections for an animal when petitioning for a civil harassment
protective order. (See Scharer v. San Luis Rey Equine Hosp.,
Inc., (2012) 204 Cal.App.4th 421, 427 ("animals are a form of
personal property under California law. ") In a civil harassment
dispute, for example, a court may issue an order "enjoining a
party from harassing, intimidating, or ? destroying personal
property" (Code of Civil Procedure Section 527.6(b)(6)(A)) that
arguably could be wielded by a sophisticated party to protect an
animal. The Assembly Judiciary Committee notes that by
specifically allowing courts to include protection for animals in
the underlying restraining order, this bill could have the benefit
of easing the process for self-represented parties. The Judicial
Council forms used by self-represented parties to seek various
restraining orders could easily be updated to include a check box
or blank space where the party could easily indicate his or her
intent to seek protection for an animal as provided by this bill.
The Bill's Protections Are Not Necessarily Limited Only to
Traditional Companion Animals. Similar to AB 353, the term
"animal" is not specifically defined. Accordingly, "animal" would
encompass virtually any possible animal belonging to the
petitioner or respondent that may be threatened by the abuse. In
defining "animal," American Jurisprudence, Second Edition, states
generally "in the language of the law, the word 'animal' is used
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to mean all animal life other than humans." Thus, the term
"animal" not only covers domestic dogs or cats, but potentially
would encompass even a dairy cow or prized racehorse. From a
public policy standpoint, this broad definition appropriate covers
the wide range of animals that may be exploited by an abuser to
try 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 as a layer of protection to prevent the use of
the provisions to gain control over valuable animals absent
sufficient justification.
Many Other States Specifically Authorize Protections of Animals to
be Included in Temporary Restraining Orders. According to the
Humane Society of the United States, this bill would cause
California to join over two dozen other states that have expanded
their laws to allow animals to be included in some type of
protective order. These states include: Arizona, Colorado,
Connecticut, the District of Columbia, Hawaii, Illinois, Iowa,
Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nevada, New
Hampshire, New Jersey, New York, North Carolina, Oklahoma, Oregon,
South Carolina, Tennessee, Vermont, Virginia, Washington, and West
Virginia.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN: 0001387