BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 99 A
Assembly Member Cohn B
As Amended March 1, 2005
Hearing Date: June 7, 2005 9
Family Code 9
GMO:rm
SUBJECT
Protective Orders: Extension of Expiration Date
DESCRIPTION
This bill would allow a court to issue protective orders,
stay-away orders and residence exclusion orders for up to
five years, instead of three years under current law, and
allow the court to renew those orders, upon request of a
party, for an additional five years instead of three years
under current law.
BACKGROUND
AB 99 is part of a package of bills introduced by the
author to improve the state's laws on domestic violence
prevention. Two other bills, AB 104 and AB 118 will also
be heard today in this committee.
According to Department of Justice criminal justice
statistics, in 2002 there were 153 murders resulting from
intimate partner violence in California. Studies conducted
on arrests and protective orders show that nearly half of
victims who obtained a protective order were re-abused
within two years, and that six percent of defendants in
domestic violence cases were convicted of violating the
order.
CHANGES TO EXISTING LAW
(more)
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Existing law allows the court, in its discretion, to issue
protective orders for a duration of not more than three
years, subject to termination or modification by further
order of the court. [Family Code 6345.] For a protective
order to issue, a petitioner must first show reasonable
proof of past acts of abuse at a noticed hearing. A
protective order may be renewed for an additional three
years, or permanently, without additional proof of abuse
since the initial order was issued.
Existing law authorizes the court to issue civil harassment
protective orders and workplace violence protective orders
for up to three years upon a showing of clear and
convincing evidence.
This bill would authorize the court to issue a domestic
violence protective order, stay-away order, and residence
exclusion order for a period up to five years, which may be
extended for another five years, or permanently, at the
request of a party.
COMMENT
1. Need for the bill
The author states:
The problem with current law is that victims of
domestic violence are having to go back to court
every three years to get a protective order
renewed. This bill addresses this by giving the
court the authority to issue an order for up to
five years if the court feels it is necessary and
there is sufficient evidence to support that
need. This bill is a cost saver because victims
won't be coming back to court every three years.
As opponents such as the Family Law Section of the State
Bar point out, however, these protective orders have been
used frequently in family law cases "as a litigation tool
for obtaining a superior legal position with custody
and/or property," and extending the duration of the
orders may severely impact or prejudice other rights and
issues relevant to the entire case, such as custody and
visitation of children of the parties.
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2. Court may issue orders of longer duration with no
additional showing of abuse or potential for abuse
a. Initial duration extended to five years
Temporary protective orders relating to personal
conduct are routinely issued by the court in family
law proceedings. In order to obtain a domestic
violence protective order relating to personal
conduct, a stay-away order, or a residence exclusion
order, a noticed hearing must be held where the
petitioner must make a showing of past acts of abuse
and likelihood of continuing abusive conduct on the
respondent's part. The court may then issue
protective orders that may last up to three years,
renewable (without further hearing or proof of
continuing threat of violence) for another three years
or permanently, upon request of a party. In practice,
the renewal of three years under current law may be
issued without a further showing only if the
respondent does not contest the request for the
extension (a contest would presumably be made on the
basis that the threat of violence has been reduced or
no longer exists). These protective orders issued
under Family Code 6345 may be terminated or modified
by the court upon written stipulation of the parties
filed with the court or on motion of any party.
AB 99 would allow the court to issue these protective
orders for up to five years, renewable for another
five years, or permanently, under the same conditions
as in existing law (no showing of further abuse
required for the second five-year period).
The author and supporters of AB 99 contend that
extending the duration of these protective orders
would save the victims the harrowing ordeal of
returning to court every three years to renew the
orders and allow them to go about their lives with
more peace of mind. Advocates for domestic violence
victims also argue that while in three years the
physical battering of the victim may have stopped,
oftentimes the litigation is drawn out for many years
and the court becomes the forum through which the
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batterers revictimize and traumatize the party
protected by the order. "?The emotional disruption
[of contested hearings] not only shatters the peace of
the victims of domestic violence, but also
reverberates through the lives of the children,
exposing them to additional family strife and
conflict." [Letter from California Alliance Against
Domestic Violence, dated May 23, 2005.] Therefore
they support the "modest" increase in the duration of
the protective orders from three years to five years.
b. Renewal for another three years to be extended to
five years: is further proof of abuse needed? Ritchie
v. Konrad test applies
This bill would allow the court to grant an extension
or renewal of the protective order for another five
years (instead of three years) without further proof
of abuse, upon request by the protected party.
The issue of whether or not renewal of an existing
order is automatic (i.e., without further proof of
abuse) under current Family Code 6345 was discussed
recently in Ritchie v. Konrad (2004) 115 Cal. App. 4th
1275. In this case of first impression, the appellate
court concluded that the trial court should grant a
requested extension unless the request is contested
and the judge determines the protected party does not
entertain a "reasonable apprehension" of future
abusive conduct.
Thus, if the request is uncontested, the protected
party and the court are both entitled to assume the
restrained party has good reason for not objecting,
which could simply be due to indifference or a
realization that there are no grounds to resist the
continuation of the order. The restrained party is
allowed, under current Family Code Sec. 6345, to move
for termination of the order at any time after it is
granted, in the event grounds did exist for contesting
the request.
The court emphasized, however, that if the restrained
party does contest the renewal, the protected party
"is not entitled to a renewal merely because she (or
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he) desires one?In this court's view, [the trial
court's] exercise of discretion requires an inquiry
beyond whether the protected party requested a renewal
and entertains a subjective desire the protective
order continue."
The Ritchie court said that for a renewal of an order
a protected party need not make a showing of immediate
and present danger of future acts of abuse. The trial
court must find, however, by a preponderance of
evidence that "the probability of future abuse is
sufficient that a reasonable woman (or man if the
protected party is a male) in the same circumstances
would have a 'reasonable apprehension' such abuse will
occur unless the court issues the protective order."
The court also specified that this reasonable
apprehension must relate to physical abuse.
AB 99 would not affect the appellate court's decision
regarding the test a trial court must use when
considering a renewal request. If enacted, AB 99
would merely push back another two years the need for
a protected party to make a showing of continued
reasonable apprehension or fear for her (or his)
physical safety. The showing described in Ritchie
seems to be a reasoned approach to the question of
what a court must consider when a request for renewal
or extension of an existing order is contested.
3. Impact of AB 99 on protective orders used as
litigation tools, and prejudicial burden on restrained
parties: would AB 99 tip the scale too far?
As introduced, this bill would have extended the duration
of these orders to ten years, renewable for another ten
or permanently without further showing of proof. The
author amended the bill to instead allow five-year
extensions of the protective orders as issues relating to
the level of proof that would be required for what
essentially would have been a twenty-year protective
order were raised. The current stalking statute permits
the issuance of a protective order for ten years, upon
clear and convincing evidence. This bill would allow
what is essentially a ten-year protective order (or a
lifetime order) based on a preponderance of evidence of
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reasonable apprehension of future acts of abuse, in a
contested case, under Ritchie .
However, opponents register other serious concerns about
the impact of even the extension to five years, renewable
for another five, that AB 99 would have on the status
quo. For example, they contend that protective orders
are now used by parties as a litigation tool to gain
legal advantage over each other with respect to custody
or property issues, thus the extension of the three year
limit on the protective order could cause a prejudicial
impact on restrained parties in some cases.
The Family Law Section of the State Bar points out that
protective orders are readily ordered, frequently without
actual proof, such that extending the duration would
overly penalize and prejudice parties who were not guilty
of the allegations. They say that at hearings on
protective orders (after the initial temporary orders had
been issued ex parte) more often than not defendants are
asked if they "have any problems staying away" from the
other party. If they answer "no," the permanent order is
generally issued. And, because the statute (Family Code
6345) mentions "three years" as the maximum duration for
such orders, trial court judges issue three-year
protective orders.
This opponent is concerned that if the maximum duration
is extended to five years, five years would be the
default duration for all 6345 orders. However, it
should be pointed out that subdivision (c) of 6345
preserves the default period of three years when the
order itself does not state an expiration date. Thus,
unless the judge specifies that the order is to last five
years, the order would default to three years maximum.
The Family Law Section of the State Bar is also concerned
about the "negative impacts" of extended protective
orders, which would be exacerbated by the increase in
duration of the initial protective order to five years
and of the renewal to another five years. Some of those
impacts are:
1) these orders could affect the restrained party's
custodial or parenting rights, even when the initial
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orders were based on just allegations (existing
protective orders create presumptions against the
restrained party, may limit visitations and even
trigger supervised visitations, etc.);
2) the orders could result in the permanent eviction
of a party from his or her home shared with the
protected party, based on mere allegations (thus
limiting restrained party's access to the home and
giving the protected party the legal advantage of
possession of the parties' property, etc.; and
3) the restrained party's name is entered into the
Federal Registry (the "Family Violence Indicator,"
where the accused's identification is put into data
banks without a mechanism to be removed therefrom even
if the order is cancelled later), thus impacting the
restrained party's employment or employment
opportunities).
Other opponents such as the California Public Defenders
Association contend that the three-year renewable limit
now in Family Code 6345 provides a balance that the
Legislature reached when the statute was first enacted.
The change proposed by AB 99, they argue, "is not
supported by data or information demonstrating a need to
keep families split apart for such an extended period of
time, unfairly places the onus on the restrained party
instead of properly on the moving party, and violates
public policy." [Letter from California Public Defenders
Association, dated June 2, 2005.]
This opponent points out that "[s]ometimes the parties
simply move on with their lives separately, and yet AB 99
would have the restraining order follow the restrained
party for up to five years." They contend that
restraining orders have the often unintended collateral
consequence of destroying families with children, since
the restrained party is often denied access to his or her
children, even though the children may not have been
targets of any violence whatsoever. Lastly, they say,
the extension, from three years to five years, of a
protective order unduly affects the employment and
employment prospects of a restrained party and, for those
who are required to carry firearms on the job, the
automatic firearms relinquishment requirement upon
issuance of a protective order means loss of their jobs
for at least five years.
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AB 99's proposed extension from three years to five
years, both for the duration of the initial order and the
renewal, would seem to tip what already seems to be a
sensitively balanced time period in 6345. The existing
three-year period seems to be one both proponents and
opponents can live with. Protected parties have the
option to request a renewal for another three years or
for a permanent (lifetime) order at the expiration of the
initial three years, thus requiring, at most, only one
other appearance at the end of that three years. The
three-year period is consistent with other protective
orders such as those issued by the juvenile court, and
workplace violence and civil harassment orders.
SHOULD THE MAXIMUM DURATION OF 6345 PROTECTIVE ORDERS
REMAIN AT THREE YEARS?
4. Previous attempts to extend duration of protective
orders to ten or five years resulted in Family Code
6345 language
It should be noted that several bills were introduced in
the late 1990's to increase the duration of protective
orders from three years to ten years. SB 187 (Hayden,
Hughes and Solis, 1995) would have made all protective
orders permanent, with no limit on duration. The bill
was eventually vetoed by the governor. AB 935 (Speier,
Ch. 907, Stats. 1995) originally stretched the duration
of protective orders from three years to ten years, but
was amended later to reflect the three-year limit with
extension of another three-years that is now in 6345.
AB 1078 (Archie-Hudson, 1995) would have extended the
three-year limit to ten years. This bill died in
Assembly Public Safety Committee.
No studies or other empirical data were submitted by
proponents to justify increasing the duration of a
protective order from three to five years. In the
absence of compelling evidence, there seems to be no
reason to upset the balance that has been achieved by AB
935 in the past ten years.
SHOULD FAMILY CODE 6345 BE LEFT ALONE?
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Support: California District Attorneys Association;
California Alliance Against Domestic Violence;
Contra Costa County Child Abuse Prevention Council;
District Attorney of Santa Clara County; Lambda
Letters Project; Los Angeles County District
Attorney's Office; American Federation of State,
County, and Municipal Employees, AFL-CIO (AFSCME);
California Commission on the Status of Women; Lt.
Governor Cruz Bustamante
Opposition: California Public Defenders Association; Family
Law Section of the
State Bar
HISTORY
Source: Author
Related Pending Legislation: AB 104 (Cohn) would allow the
dismissal of a protective order
issued under 6345 by the issuing
judge upon written stipulation by the
parties or on motion of a party prior
to the expiration date of the order.
This bill is scheduled to be heard
today in this committee.
AB 118 (Cohn) would require that, if
a criminal protective order has been
issued, a visitation or visitation
and custody order shall make
reference to and acknowledge the
precedence of the criminal protective
order. This bill is also scheduled
to be heard today in this committee.
Prior Legislation: See Comment 4.
Prior Vote: Asm. Jud. (Ayes 7, Noes 1)
Asm. Flr. (Ayes 70, Noes 5)
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