BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 536


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          Date of Hearing:  April 7, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 536  
          (Bloom) - As Introduced February 23, 2015


                    PROPOSED CONSENT (As Proposed to be Amended)


          SUBJECT:  Domestic violence: mutual restraining orders


          KEY ISSUE:  SHOULD THE WRITTEN EVIDENCE OF ABUSE NECESSARY FOR  
          ISSUANCE OF A MUTUAL RESTRAINING ORDER BE REQUIRED TO BE  
          SUBMITTED IN AN APPLICATION FOR RELIEF AND NOT AS PART OF A  
          RESPONSIVE PLEADING?


                                      SYNOPSIS


          This non-controversial bill, sponsored by the Family Law Section  
          of the State Bar, seeks to clarify the requirements necessary  
          before a court can issue a mutual restraining order.  A mutual  
          restraining order is a single order that restrains both the  
          petitioner and the respondent.  Existing law requires that  
          before a court can issue such an order, both parties must appear  
          and present written evidence of abuse and the court must find  
          that neither party acted as the primary aggressor.  These  
          requirements are designed to ensure that a court only issues a  
          mutual restraining order when one is truly warranted.  This bill  
          clarifies that the written evidence of abuse must be submitted  








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          on an application for affirmative relief, and not simply as part  
          of a responsive pleading.  The bill is supported by the  
          California Partnership to End Domestic Violence and there is no  
          known opposition.


          SUMMARY:  Requires that written evidence of abuse necessary for  
          issuance of a mutual restraining order be provided to the court  
          on an application for relief.  Specifically, this bill:  


          1)Provides that a court may not issue a mutual restraining order  
            unless, among other things, each party presents written  
            evidence of abuse or domestic violence in an application for  
            relief using a mandatory Judicial Council restraining order  
            application form.


          2)Provides that written evidence in a responsive pleading does  
            not satisfy the requirement that the written evidence of abuse  
            or domestic violence must be presented to a court before it  
            can issue a mutual restraining order.


          3)Requires Judicial Council, by July 1, 2016, to modify forms as  
            necessary to provide notice of 1) and 2), above.


          EXISTING LAW:  


          1)Authorizes a court, under the Domestic Violence Prevention  
            Act, to issue and enforce a domestic violence restraining  
            order, including an emergency protective order, a temporary  
            restraining order and a permanent restraining order after  
            hearing.  (Family Code Sections 6300 et seq.  Unless stated  
            otherwise, all further statutory references are to that code.)










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          2)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 as a primary aggressor and  
            that neither party acted primarily in self-defense, as  
            provided.  (Section 6305.)


          3)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).)


          4)Does not, under the federal Violence Against Women Act,  
            entitle a restraining order issued against a party who has  
            petitioned for a restraining order against a spouse or  
            intimate partner to full faith and credit if either: (a) no  
            cross or counter petition was filed seeking such a protection  
            order; or (b) a cross or counter petition had been filed but  
            the court did not make specific findings that each party was  
            entitled to such an order.  (18 U.S.C. Section 2265(c).)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  This bill seeks to clarify the requirements necessary  
          before a court can issue a mutual restraining order.  A mutual  
          restraining order is a single order that restrains both the  
          petitioner and the respondent.  Existing law requires that  
          before a court can issue such an order, both parties must appear  
          and present written evidence of abuse and the court must find  
          that neither party acted as the primary aggressor.  These  








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          requirements are designed to ensure that a court only issues a  
          mutual restraining order when one is truly warranted.  This bill  
          clarifies that the written evidence of abuse must be submitted  
          on an application for affirmative relief, and not simply as part  
          of a responsive pleading.


          Concerns About Mutual Restraining Orders:  Victims' advocates  
          argue that mutual protective orders are often based on  
          misconceptions about domestic violence, and encourage society to  
          trivialize abuse or consider abuse too minor to determine the  
          identity of the "real" abuser.  (Joan Zorza, What is Wrong with  
          Mutual Orders of Protection?, Family and Intimate Partner  
          Violence Quarterly, Vol. 1 No. 2 (Fall 2008).)  In addition,  
          mutual restraining orders can reduce batterer accountability by  
          holding both the victim and the batterer equally responsible for  
          the violence.  The California Partnership to End Domestic  
          Violence, which supports the bill, succinctly sums up its  
          concerns:  "Mutual restraining orders have been found to be  
          extremely problematic, sending contradictory signals as to who  
          is responsible for the abuse and empowering the abuser while  
          disempowering the survivor."


          As a result, California limits mutual restraining orders to  
          those situations where (1) both parties appear before the court  
          and present written evidence of abuse to the court; and (2) the  
          court makes detailed findings that both parties acted as primary  
          aggressors and that neither acted primarily in self-defense.   
          What is not clear in existing law is how the written evidence  
          necessary for a court to make those findings has to be presented  
          to the court.


          Due Process Requires That Parties Have Sufficient Notice of What  
          a Court is Being Asked to Do:  The author and sponsor are  
          concerned that the current requirement of written evidence  
          before issuance of a mutual restraining order is not specific  
          enough and could allow a party to submit written evidence on a  








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          responsive pleading (an Answer).  The sponsor explains the  
          problem with allowing such written evidence on the Answer:   
          "Issuing a restraining order on the basis of responsive papers  
          violates due process, because the party against whom the order  
          was issued on the basis of an Answer did not have proper notice  
          that the issuance of mutual orders was before the court.  Orders  
          issued without proper notice are unfair to the restrained party  
          and also cause enforcement problems, as they are not entitled to  
          full faith and credit under the federal Violence Against Women  
          Act."


          This bill clarifies that the required written evidence of abuse  
          must be on an application for relief and cannot appear in a  
          responsive pleading.  This ensures that both parties are given  
          sufficient notice of what is being sought in court and the  
          opportunity to properly respond in court.


          This bill is consistent with federal law, which provides, under  
          the Violence Against Women Act, that a protective order is only  
          entitled to full faith and credit if issued against a party who  
          has petitioned for a restraining order in a "cross or counter  
          petition" (i.e., not an Answer).  Thus the clarification in this  
          bill will help ensure that California restraining orders are  
          entitled to full faith and credit (allowing the order to be  
          enforced in another state).


          Judicial Council Forms:  To assist parties seeking or defending  
          against a domestic violence restraining order, the vast majority  
          of whom -- upwards of 90 percent, according to the Judicial  
          Council -- are unrepresented, the Judicial Council has a series  
          of forms and instruction sheets for domestic violence retraining  
          orders.  These include the following petition for an order form,  
          response form, and information sheets:


                 DV-100 -- Request for Domestic Violence Restraining  








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               Order
                 DV-505-INFO -- Can a Domestic Violence Restraining Order  
               Help Me?


                 DV-120 -- Response to Request for Domestic Violence  
               Restraining Order


                 DV-120-INFO -- How Can I Respond to a Request for a  
               Domestic Violence Restraining Order?


          These forms are written in relatively simple English and  
          translated into four languages.  This bill requires that the  
          forms be updated, as appropriate, to ensure the parties  
          understand that a mutual restraining order can only be issued if  
          both parties provide written evidence of abuse on the  
          application for relief form and not the response form.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Family Law Section of the State Bar (sponsor)


          California Partnership to End Domestic Violence




          Opposition









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          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334