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)
**************