BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 536 (Bloom)
          Version: April 8, 2015
          Hearing Date: June 9, 2015
          Fiscal: Yes
          Urgency: No
          NR   


                                        SUBJECT
                                           
                        Domestic violence:  protective orders

                                      DESCRIPTION  

          This bill would prohibit a court from issuing a mutual  
          restraining order unless each party presents written evidence of  
          abuse or domestic violence in an application for relief using a  
          mandatory Judicial Council restraining order application form,  
          as specified.  This bill would also require, by July 1, 2016,  
          the Judicial Council to modify forms as necessary to provide  
          notice of this information. 

                                      BACKGROUND  

          California authorizes a court to issue mutual protective orders  
          in situations where both parties appear before the court, and  
          the court makes detailed findings of fact that both parties  
          acted primarily as aggressors, and neither acted primarily in  
          self-defense.  Victims' advocates claim that mutual protective  
          orders are 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 response to concerns regarding mutual restraining orders, the  
          Legislature enacted AB 2089 (Quirk, Chapter 635, Statutes of  
          2014) which required the court, in determining if both parties  
          acted primarily as aggressors, to consider the definition of  








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          "dominant aggressor" set forth in the Penal Code, which defines  
          a dominant aggressor as the person determined to be the most  
          significant, rather than the first, aggressor, and requires the  
          court to consider:  (1) the intent of the law to protect victims  
          of domestic violence from continuing abuse; (2) threats creating  
          fear of physical injury; (3) any history of domestic violence  
          between the persons involved; and (4) whether either person  
          involved acted in self-defense. (Fam. Code Sec. 6305(c); Pen.  
          Code Secs. 836(c) and 13701(b).)

          Further, the American Bar Association instructs lawyers to  
          understand the power dynamics between two parties prior to  
          seeking a mutual restraining order and cautions that such orders  
          may be federally preempted under the Violence Against Women Act:  


            The lawyer should be aware of the dangers of mutual protection  
            orders. A mutual order is an order issued against both parties  
            (i.e., both the client and the respondent) on the basis of  
            only one petition. Because mutual orders are issued sua  
            sponte, without a petition by the respondent and a finding  
            that the respondent is entitled to protection, some  
            jurisdictions prohibit mutual orders, pursuant to statute.  
            Mutual orders are generally discouraged because they often  
            serve to further embolden the perpetrator to abuse and  
            discourage the victim from seeking legal assistance. Mutual  
            orders lack a finding of the predominant aggressor, and  
            frequently lead to unfair mutual arrest in any future incident  
            of abuse. 

            Lawyers should also be aware that according to the federal  
            Violence Against Women Act (VAWA), mutual orders are not  
            entitled to full faith and credit in other jurisdictions, and  
            the lawyer should counsel the client accordingly. If the  
            lawyer discovers that there is a mutual order in place, the  
            lawyer needs to identify who 
            the original petitioner is. If the original petition was filed  
            by the perpetrator, the lawyer should counsel the client to  
            file an independent petition to avoid the mutual protection  
            order problem. The lawyer should have a solid understanding of  
            the dynamics of power and control in order to effectively  
            counsel clients about the risks of agreeing to mutual orders.  
            (Standards of Practice for Lawyers Representing Victims of  
            Domestic Violence, Sexual Assault and Stalking in Civil  
            Protection Order Cases, American Bar Association, (2007) pp.  







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            9-10.)

          This bill, seeking to ensure that mutual restraining orders are  
          only issued when appropriate and when both parties have a chance  
          to respond to allegations of abuse, would authorize a court to  
          issue mutual restraining orders only when parties present  
          written evidence of abuse or domestic violence in an application  
          for relief using a mandatory Judicial Council restraining order  
          application form. 

                                CHANGES TO EXISTING LAW
           
           Existing law  establishes the Domestic Violence Prevention Act  
          (DVPA), and authorizes a court to issue a 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  authorizes the court to issue a protective order to  
          prevent recurrence of domestic violence based on information in  
          an affidavit, or, if necessary, an affidavit and any additional  
          information provided to the court regarding specified criminal  
          convictions.  (Fam. Code Sec. 6300.)

           Existing law  provides that a court shall not issue a mutual  
          protective order unless both parties appear and present written  
          evidence of abuse, and the court makes detailed findings  
          indicating that both parties acted primarily as aggressors, and  
          neither party acted primarily in self-defense.  (Fam. Code Sec.  
          6305.)

           Existing law  requires the court, in determining if both parties  
          acted primarily as aggressors, to consider the provisions  
          concerning dominant aggressors set forth in the Penal Code,  
          which define a dominant aggressor as the person determined to be  
          the most significant, rather than the first, aggressor, as  
          specified. (Fam. Code Sec. 6305(c); Pen. Code Secs. 836(c) and  
          13701(b).)

           Existing federal law  prohibits, under the federal Violence  
          Against Women Act, a restraining order from being issued against  
          a party who has petitioned for a restraining order against a  
          spouse or intimate partner to full faith and credit if either: 
           no cross or counter petition was filed seeking such a  







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            protection order; or 
           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).)

           This bill  would prohibit a court from issuing a mutual  
          restraining order unless each party presents written evidence of  
          abuse or domestic violence in an application for relief using a  
          mandatory Judicial Council restraining order application form. 

           This bill  would provide that written evidence of abuse or  
          domestic violence in a responsive pleading does not satisfy the  
          party's obligation to present written evidence of abuse or  
          domestic violence. 

           This bill  would require, by July 1, 2016, the Judicial Council  
          to modify forms as necessary to provide notice of this  
          information. 

                                        COMMENT
           
           1.Stated need for the bill

           According to the author: 

            Family Code Section 6305 is not sufficiently specific with  
            regards to the type of written evidence of abuse that would  
            satisfy the requirements of this section.  Some courts have  
            accepted a request for mutual restraining orders and  
            supporting written evidence of abuse presented in domestic  
            violence restraining order responsive declaration forms, which  
            creates potential due process and fairness issues as the other  
            party will not have proper notice and due process protections  
            provided through domestic violence restraining order  
            application forms.

           2.Clarifies that, prior to the issuance of a mutual restraining  
            order, parties must provide evidence of domestic violence in a  
            petition.  
           
          Depending on type, domestic violence protective orders may last  
          days, weeks, years, or even permanently.  Emergency protective  
          orders (EPO), 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  







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          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.  (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 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.)

          Under existing law, the court may not issue mutual protective  
          orders unless both parties personally appear and each party  
          presents written evidence of abuse, and the court makes detailed  
          findings of fact indicating that both parties acted primarily as  
          aggressors and neither party acted in self-defense.  According  
          to the Executive Committee of the Family Law Section of the  
          State Bar (FLEXCOM), sponsor of this bill, this requirement in  
          existing law lacks clarity.  FLEXCOM writes:

            Some courts have issued mutual restraining orders based on  
            allegations of abuse contained in responsive papers (an  
            "Answer"), rather than in an affirmative application for a  
            restraining order. This has also created inconsistencies among  
            the courts in their consideration and determination of  
            restraining orders. 

            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.

          Accordingly, this bill would require that both parties submit  
          written evidence of domestic violence in a petition, before the  
          court may issue a mutual restraining order.  While courts may  
          still issue a mutual EPO or TRO, this bill would ensure that  







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          parties' due process rights are protected by providing an  
          opportunity to respond to allegations of abuse before an order  
          is issued after notice and hearing, which may be granted for up  
          to five years.  Further, to ensure that self-represented  
          litigants understand how to seek or defend against mutual  
          protective orders, this bill would require the Judicial Council  
          to update, by July 1, 2016, forms and information sheets related  
          to domestic violence restraining orders.

           
           Support  :  California Partnership to End Domestic Violence

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Executive Committee of the Family Law Section of the  
          State Bar (FLEXCOM)

           Related Pending Legislation  :  None Known


           Prior Legislation  : AB 2089 (Quirk, Chapter 635, Statutes of  
          2014) made various changes to the Domestic Violence Prevention  
          Act (DVPA) including clarifying the definition of "abuse" by  
          providing that abuse is not limited to the actual infliction of  
          physical injury or assault, and revising and recasting language  
          related to mutual protective orders.

           Prior Vote  :

          Assembly Floor (Ayes 77, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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