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 AB 536 (Bloom) Page 2 of ? "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. AB 536 (Bloom) Page 3 of ? 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 AB 536 (Bloom) Page 4 of ? 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 AB 536 (Bloom) Page 5 of ? 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 AB 536 (Bloom) Page 6 of ? 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) **************