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
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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