BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 118 A
Assembly Member Cohn B
As Amended May 25, 2005
Hearing Date: June 7, 2005 1
Family Code; Penal Code 1
GMO 8
SUBJECT
Protective Orders: Precedence of Criminal Protective Orders
Over Child Custody and Visitation Orders
DESCRIPTION
This bill would require that, if a protective order has
been issued by a criminal court, the court shall make
reference to said protective order and acknowledge the
precedence of enforcement of said criminal protective
order.
The bill would require Judicial Council to modify criminal
and civil court forms consistent with the bill, by July 1,
2006.
BACKGROUND
AB 118 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 99 and AB 104 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
(more)
AB 118 (Cohn)
Page 2
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
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 the court to impose
conditions or limitations on such visitations as necessary
in the best interest of the child. [Family Code 3100.]
Existing law authorizes the court to issue protective
orders governing personal conduct, stay-away orders, and
residence exclusion orders upon petition and a noticed
hearing.
Existing law also authorizes any court with jurisdiction
over criminal matters to issue protective orders and to
coordinate all orders against the same defendant and in
favor of the same victim or victims so that the different
protective orders may coexist and ensure the safety of the
children and the families involved. [Penal Code 136.2.]
This bill would require that if a criminal protective order
has been issued pursuant to Penal Code 136.2, a
visitation order shall make reference to and acknowledge
the precedence of enforcement of the criminal protective
order.
COMMENT
1. Need for the bill
The author states:
The deficiency in current law is that there can
be more than one valid protective order with
AB 118 (Cohn)
Page 3
conflicting restrictions regarding custody or
visitation. This bill requires that if a
criminal protective order exists, any subsequent
custody or visitation between the same parties
must make reference to the criminal protective
order. This will ensure that there are not two
conflicting orders issued.
Issuing protective orders without even looking at
the restrictions on other orders, especially ones
that take precedence, makes it harder for the
orders to be enforced because it is unclear to
law enforcement how the restrained person is
suppose[sic] to have contact with his or her
child. It is also unclear to both parties
involved what type of contact is allowed between
the child and restrained person.
2. Criminal court protective orders and custody and/or
visitation orders
Current law requires the Judicial Council to promulgate a
protocol, to be adopted by local courts, for the timely
coordination of all orders against the same defendant and
in favor of the same victim or victims. The protocol has
been in place since 2003. It specifies mechanisms for
assuring appropriate communication and information
sharing between criminal, family, and juvenile courts
concerning cases that involve the same parties, and
allows those protective and other orders to coexist under
specified conditions. Custody and visitation orders
issued by a family or juvenile court with respect to a
defendant and his or her minor children must be
consistent with this protocol.
No studies, reports, or other empirical data has been
submitted to staff to indicate that there has been a
problem in implementing the protocol developed by the
Judicial Council to justify this bill. However,
modification of the Judicial Council forms (see Comment
3) to make use of the protocol more convenient appears
sufficiently meritorious to warrant enactment of this
measure.
AB 118 (Cohn)
Page 4
Proponents of this bill, however, state that it is not a
given that a family court checks with the criminal court
to see if other protective orders had been issued against
a defendant parent by the criminal court. Therefore, AB
118 is designed to prompt the family court to do just
that. To further emphasize the importance and
significance of protective orders issued by the criminal
court, this bill would require the court to not only make
reference to the criminal court's orders, but also to
acknowledge the enforcement preference of such orders.
Supporters of the bill argue that by requiring family
court protective orders to reference criminal court
protective orders, inconsistencies between the orders
will be reduced, and family court judges may be better
informed when fashioning appropriate guidelines for
custody or visitation of the child or children.
Suggested amendment: The Family Law Section of the State
Bar suggests one clarifying amendment to the bill:
On page 2, line 28, strike out "the" and insert: any
appropriate
3. Judicial Council to develop appropriate forms
AB 118 would require the Judicial Council to modify forms
currently used to implement the protocol established
pursuant to Penal Code 136.2 by January 1, 2006, to
make them consistent with the requirements of AB 118.
The modified forms would not only make the coordination
and cross-referencing of the protective orders easier for
the judges and the courts, but also for the law
enforcement who are often called on to enforce the
orders.
Support: Family Law Section of the State Bar; National
Association of Social Workers, California Chapter;
American of Federal, State, County and Municipal
Employees, AFL-CIO (AFSCME); Peace Officers Research
Association of California (PORAC)
Opposition: None Known
AB 118 (Cohn)
Page 5
HISTORY
Source: Author
Related Pending Legislation: AB 112 (Cohn) would give
precedence to protective orders
issued by a criminal court over all
other protective orders, except for
emergency protective orders under
specified circumstances. This bill
is in the Senate Public Safety
Committee.
AB 1288 (Chu) relates to the
requirement that a person against
whom a protective order has been
issued surrender his or her firearms.
This bill is in the Senate Public
Safety Committee.
SB 720 (Kuehl) would require
transmittal of data on protective
orders issued by family or juvenile
court to be transmitted to law
enforcement personnel, just as orders
issued by the criminal court are
transmitted. This bill is in the
Assembly Committee on Judiciary.
Prior Legislation: None Known
Prior Vote: Asm. Jud. (Ayes 9, Noes 0)
Asm. Appr. (Ayes 18, Noes 0)
Asm. Flr. (Ayes 71, Noes 0) (Consent)
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