BILL ANALYSIS Ó AB 536 Page 1 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 AB 536 Page 2 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.) AB 536 Page 3 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 AB 536 Page 4 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 AB 536 Page 5 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 AB 536 Page 6 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 AB 536 Page 7 None on file Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334