BILL ANALYSIS
AB 118
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 118 (Cohn)
As Amended September 1, 2005
Majority vote
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|ASSEMBLY: |71-0 |(April 21, |SENATE: |40-0 |(September 7, |
| | |2005) | | |2005) |
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Original Committee Reference: JUD.
SUMMARY : Seeks to ensure that custody and visitation orders are
consistent with preexisting criminal protective orders.
Specifically, this bill requires:
1)That if a criminal protective order exists, any subsequent
custody or visitation order between the same parties must make
reference to, and acknowledge the precedence of enforcement
of, any appropriate criminal protective order.
2)The Judicial Council (JC) to modify any relevant criminal and
civil court forms on or before July 1, 2006.
The Senate amendments require that a custody or visitation
order, issued subsequent to any appropriate criminal protective
order, acknowledges the precedence of enforcement of the
criminal protective order and add chaptering out language.
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.
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.
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3)Includes personal conduct restraints and stay away orders
issued under Family Code Section 6320 as criminal protective
orders.
4)Gives criminal protective orders precedence over civil orders
involving the defendant.
5)Requires the JC 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.
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
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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar,
except as set forth above.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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.
AB 118
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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
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 JC 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
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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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0013048