BILL ANALYSIS
AB 118
Page 1
Date of Hearing: April 5, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 118 (Cohn) - As Amended: March 29, 2005
PROPOSED CONSENT
SUBJECT : CRIMINAL PROTECTIVE ORDERS: SUBSEQUENT CUSTODY AND
VISITATION ORDERS
KEY ISSUE : IN ORDER TO ENSURE THE SAFETY OF CHILDREN, SHOULD A
LOOPHOLE IN THE LAW BE ADDRESSED TO REQUIRE THAT JUDGES, WHEN
ORDERING CUSTODY AND VISITATION AFTER A CRIMINAL PROTECTIVE
ORDER BETWEEN THE SAME PARTIES HAS BEEN ISSUED, SPECIFICALLY
REFERENCE THAT PREEXISTING PROTECTIVE ORDER?
SYNOPSIS
This bill seeks to ensure that judges, when ordering custody and
visitation after a criminal protective order involving the same
parties has been issued, be required to specifically reference
the criminal protective order in any subsequent custody and
visitation order. By requiring that judges issuing family law
orders have been made aware of any preexisting criminal
protective orders, children's safety should be improved.
Additionally, since under current law a criminal protective
order always has precedence over a family law order, it may not
always be possible for parties or law enforcement to determine
if a family law order is inconsistent with the protective order
and, thus, not enforceable. This bill, by requiring that that
any subsequent custody order references the protective order,
should help parties and law enforcement, when faced with
multiple orders, potentially better understand which orders are
enforceable.
SUMMARY : This bill seeks to ensure that custody and visitation
orders are consistent with preexisting criminal protective
orders. Specifically, this bill :
1)Requires that if a criminal protective order exists, any
subsequent custody or visitation order between the same
parties must make reference to the criminal protective order.
2)Requires the Judicial Council to modify any relevant criminal
AB 118
Page 2
and civil court forms on or before July 1, 2006.
EXISTING LAW :
1)Defines domestic violence as abuse, defined as intentionally
or recklessly causing or attempting to cause bodily injury, or
placing another person in reasonable apprehension of imminent
serious bodily injury, committed to an adult or a minor who is
a spouse, former spouse, cohabitant, former cohabitant, or
person with whom the suspect has had a child or is having or
has had a dating or engagement relationship. (Penal Code
Section 13700.)
2)Authorizes a court to issue a criminal protective order upon a
good cause belief that harm to, or intimidation of, a victim
or witness has occurred or is reasonably likely to occur.
Where the defendant is charged with domestic violence,
requires the court to consider issuing specified orders on its
own motion. (Penal Code Section 136.2.)
3)Includes personal conduct restraints and stay away orders
issued under Family Code Section 6320 as criminal protective
orders. (Penal Code Section 136.2.)
4)Gives criminal protective orders precedence over civil orders
involving the defendant. (Penal Code Section 136.2.)
5)Requires the Judicial Council to promulgate a rule for
adoption by all local courts to provide for the coordination
of orders against the same defendant and in favor of the same
named victims. The rule must permit a family or juvenile
court order to coexist with a criminal protective order
provided (a) 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; and (b) in order to
ensure the safety of all parties is the courts' paramount
concern, the family or juvenile court shall specify the time,
day, place, and manner of transfer of the child. (Penal Code
Section 136.2; California Rule of Court 5.500.)
6)Requires that whenever 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
AB 118
Page 3
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. (Family Code
Section 3100.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : This bill is part of a broad package of bills
introduced by Assemblymember Cohn seeking to improve the state's
continuing efforts to reduce domestic violence. This bill seeks
to ensure that judges, when issuing custody and visitation
orders after a criminal protective order involving the same
parties is in place, properly consider the protective order by
requiring that the subsequent family law orders specifically
reference the protective order.
This bill, the author argues, is necessary to help ensure
protective orders and custody and visitation orders are
consistent, and that children are safe:
Currently if the type of contact between the children
and restrained person is not stated then the
restrained person may violate the order stating that
they were just trying to see their children for the
order does not state whether or not the restrained
person may have contact with the children.
Under current law, a criminal protective order always has
precedence over any civil order involving the defendant. Thus,
if a criminal protective order provides for "no contact" between
the defendant and his or her children, no contact is
permissible, regardless of what a family court order may
provide. In the absence of a "no contact" order, however, a
defendant may be permitted contact with his or her children,
provided that following conditions are satisfied: (1) the
family court judge determines that such contact is in the
child's best interest; (2) the contact can be done in a way that
ensures the safety of all family members; (3) the contact is
consistent with the criminal protective order; and (4) the order
provides for the safe exchange of the child by specifying the
time, day, place and manner of transfer of the child.
This bill seeks to close a loophole in the law that could permit
AB 118
Page 4
a family court judge who, while not aware of the criminal
protective order against one of the parties, issues a custody
and visitation order that the judge would not have issued were
he or she aware of the protective order. A judge, unaware of
the protective order, may issue a custody and visitation order
that seems to satisfy the requirements set forth above, but, had
the judge known of the protective order, never been issued. By
requiring that any subsequent custody and visitation order makes
reference to the criminal protective order, the judge must be
made aware of the protective order and, thus, appropriately
consider it when make the custody and visitation determination.
Moreover, by requiring that the Judicial Council develop forms
consistent with the requirements of this legislation, this bill
should also reduce confusion that the parties or law enforcement
may have when faced with multiple and, often, conflicting
orders. The criminal protective order should note that any
subsequent custody and visitation order must not only be
consistent with the protective order, but must also
cross-reference it. Both law enforcement and the parties will
more easily be able to determine if the subsequent family law
order properly references the criminal protective order, and,
thus, is enforceable.
REGISTERED SUPPORT / OPPOSITION :
Support
Child Abuse Prevention Council of Contra Costa County
Family Section of the State Bar
Office of the District Attorney, Santa Clara County
Peace Officers Research Association of California (PORAC)
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334