BILL NUMBER: AB 118 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 25, 2005
AMENDED IN ASSEMBLY MARCH 29, 2005
AMENDED IN ASSEMBLY MARCH 9, 2005
INTRODUCED BY Assembly Member Cohn
(Principal coauthor: Senator Alquist)
(Coauthor: Assembly Member Spitzer)
JANUARY 13, 2005
An act to amend Section 3100 of the Family Code, and to amend
Section 136.2 of the Penal Code, relating to protective orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 118, as amended, Cohn. Protective orders: minor children.
Existing law authorizes the court to grant reasonable visitation
rights to a parent unless it is shown that the visitation would be
detrimental to the best interest of the child.
Existing law also authorizes any court with jurisdiction over a
criminal matter to issue protective orders.
This bill would require that if a criminal protective order has
been issued, as specified, a visitation order or a specified custody
and visitation order shall make reference to , and acknowledge
the precedence of enforcement of, the criminal protective
order. The bill would require the Judicial Council to modify criminal
and civil court forms consistent with this provision, on or before
July 1, 2006.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3100 of the Family Code is amended to read:
3100.
(a) In making an order pursuant to Chapter 4 (commencing with
Section 3080), the court shall grant reasonable visitation rights to
a parent unless it is shown that the visitation would be detrimental
to the best interest of the child. In the discretion of the court,
reasonable visitation rights may be granted to any other person
having an interest in the welfare of the child.
(b) If a protective order, as defined in Section 6218, has been
directed to a parent, the court shall consider whether the best
interest of the child requires that any visitation by that parent
shall be limited to situations in which a third person, specified by
the court, is present, or whether visitation shall be suspended or
denied. The court shall include in its deliberations a consideration
of the nature of the acts from which the parent was enjoined and the
period of time that has elapsed since that order. A parent may submit
to the court the name of a person that the parent deems suitable to
be present during visitation.
(c) If visitation is ordered in a case in which domestic violence
is alleged and an emergency protective order, protective order, or
other restraining order has been issued, the visitation order shall
specify the time, day, place, and manner of transfer of the child, so
as to limit the child's exposure to potential domestic conflict or
violence and to ensure the safety of all family members. If a
criminal protective order has been issued pursuant to Section 136.2
of the Penal Code, the visitation order shall make reference to
, and acknowledge the precedence of enforcement of, the
criminal protective order.
(d) If the court finds a party is staying in a place designated
as a shelter for victims of domestic violence or other confidential
location, the court's order for time, day, place, and manner of
transfer of the child for visitation shall be designed to prevent
disclosure of the location of the shelter or other confidential
location.
SEC. 2 Section 136.2 of the Penal Code is amended to read:
136.2.
Upon a good cause belief that harm to, or intimidation or
dissuasion of, a victim or witness has occurred or is reasonably
likely to occur, any court with jurisdiction over a criminal matter
may issue orders including, but not limited to, the following:
(a) Any order issued pursuant to Section 6320 of the Family Code.
(b) An order that a defendant shall not violate any provision of
Section 136.1.
(c) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(d) An order that any person described in this section shall have
no communication whatsoever with any specified witness or any victim,
except through an attorney under any reasonable restrictions that
the court may impose.
(e) An order calling for a hearing to determine if an order as
described in subdivisions (a) to (d), inclusive, should be issued.
(f) An order that a particular law enforcement agency within the
jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
For purposes of this subdivision, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(g) Any order protecting victims of violent crime from contact,
with the intent to annoy, harass, threaten, or commit acts of
violence, by the defendant. The court or its designee shall transmit
orders made under this subdivision to law enforcement personnel
within one business day of the issuance, modification, extension, or
termination of the order, pursuant to subdivision (a) of Section 6380
of the Family Code. It is the responsibility of the court to
transmit the modification, extension, or termination orders made
under this subdivision to the same agency that entered the original
protective order into the Domestic Violence Restraining Order System.
Any order issued, modified, extended, or terminated by a court
pursuant to this subdivision shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
Any person violating any order made pursuant to subdivisions (a)
to (g), inclusive, may be punished for any substantive offense
described in Section 136.1, or for a contempt of the court making the
order. A finding of contempt shall not be a bar to prosecution for a
violation of Section 136.1. However, any person so held in contempt
shall be entitled to credit for any punishment imposed therein
against any sentence imposed upon conviction of an offense described
in Section 136.1. Any conviction or acquittal for any substantive
offense under Section 136.1 shall be a bar to a subsequent punishment
for contempt arising out of the same act.
(h) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(i) (1) In all cases where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, the court shall
consider issuing the above-described orders on its own motion. All
interested parties shall receive a copy of those orders. In order to
facilitate this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court to this
issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, a restraining order or protective
order against the defendant issued by the criminal court in that case
has precedence in enforcement over any civil court order against the
defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (j),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to , and acknowledge the precedence of enforcement
of, the criminal protective order. On or before July 1, 2006,
the Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(j) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for assuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) Any order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(k) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.