Amended in Assembly April 10, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2089

Introduced by Assembly Member Quirk

February 20, 2014

An act to amend Sections 6203, 6300, 6301, 6305, 6340, and 6345 of, and to repeal and add Section 6220 of, the Family Code, relating to domestic violence.

LEGISLATIVE COUNSEL’S DIGEST

AB 2089, as amended, Quirk. Domestic violence: protective orders.

The Domestic Violence Prevention Act authorizes a judicial officer to issue a protective order after notice and a hearing for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, based on an affidavit showing reasonable proof of past abuse. The act defines domestic violence as abuse perpetrated against specified persons, and further defines abuse within that context. Under existing law, failure to state the expiration date of the order, as specified, creates an order with a duration of 3 years from the date of issuance. Existing law requires, under certain circumstances, the clerk of the court to submit the proof of service of a protective order directly into the Department of Justice Domestic Violation Restraining Order System.

This bill would instead authorize the issuance of a protective order after notice and a hearing for the purpose of providing expeditious and effective protection from abuse to ensure that the lives of domestic violence victims and their children will be as safe, secure, and uninterrupted as possible. The bill would provide that these orders may be issued on the basis of evidence of past abuse, without any showing that the wrongful acts will be continued or repeated. The bill would prohibit the court from denying an order begin insert based in whole or in part on the length of time between the issuance of a certain ex parte order and a hearing on a certain order that may be issued, or on the absence of abuse during that time. The bill would also prohibit a court, if the last incidence of abuse occurred five years or less before the filing of a petition for an order, from denying the order end insert solely because of the length of time between begin delete an act end delete begin insert the last incidence end insert of abuse and the filing of the petition for the begin delete restraining end delete order. The bill would also require the trial court to state its reasons for denying a protective order in writing or on the begin delete record, if a statement of decision is not requested. end delete begin insert record. end insert The bill would provide that failure to state the expiration date of the order creates an order with a duration of 5 years from the date of issuance.

Existing law authorizes the court to issue a mutual order enjoining the parties from specific acts of abuse if both parties personally appear, each party presents written evidence of abuse or domestic violence, and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

This bill would instead authorize the issuance of a mutual order if begin delete neither party end delete begin insert both parties end insert acted as begin delete the end delete begin insert a end insert dominant aggressor. The bill would begin delete direct the court, in identifying the dominant aggressor, to consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person involved acted in self-defense. end delete begin insert provide that use of the term “dominant aggressor” is not intended to impact decisional law regarding these provisions and that decisional law should apply equally to these provisions as they refer to “dominant aggressor” in place of “primary aggressor.” end insert

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.  

The Legislature finds and declares all of the
following:

(a) Every person has a right to be safe and free from violence
and abuse in his or her home and intimate relationships.

(b) Domestic violence is a pervasive public safety and public
health problem that affects people of all income levels, cultures,
religions, ages, ethnic backgrounds, sexual orientations, and
neighborhoods.

(c) Domestic violence is not limited to actual and threatened
physical acts of violence, but also includes sexual abuse, stalking,
psychological and emotional abuse, financial control, property
control, and other behaviors by the abuser that are designed to
exert coercive control and power over the victim.

(d) There is a positive correlation between domestic violence
and child abuse, and children, even when they are not physically
assaulted, suffer deep and lasting emotional, health, and behavioral
effects from exposure to domestic violence.

(e) Domestic violence victims face significant barriers to safely
leaving an abusive relationship, including, but not limited to, a
risk of retaliation and escalated violence by the abuser, concerns
over the safety and custody of their children, an impending loss
of financial support and housing, the responsibility for other
household members and pets, and difficulties accessing legal and
community systems to seek protection from abuse.

(f) Studies have shown that obtaining a civil protective order
against an abuser can increase a victim’s safety, decrease a victim’s
fear of future harm, and improve a victim’s overall sense of well
being and self-esteem.

(g) Because the issuance of civil protective orders often results
in declines in domestic violence, public money spent on protective
order intervention produces significant cost savings to society,
including decreasing victims’ time off from work, property loss,
use of health services, and use of community, legal, and criminal
justice interventions.

(h) Civil protective orders are most effective when they offer
comprehensive relief to address the various barriers victims face
when safely separating from an abuser, are specific in their terms,
and are consistently enforced.

(i) For these reasons, the effective issuance and enforcement of
civil protective orders are of paramount importance in the State
of California as a means for promoting safety, reducing violence
and abuse, and preventing serious injury and death.

SEC. 2.  

Section 6203 of the Family Code is amended to read:

6203.  

(a) For purposes of this act, “abuse” means any of the
following:

(1) Intentionally or recklessly to cause or attempt to cause bodily
injury.

(2) Sexual assault.

(3) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another.

(4) To engage in any behavior that has been or could be enjoined
pursuant to Section 6320.

(b) Abuse is not limited to the actual infliction of physical injury
or assault.

SEC. 3.  

Section 6220 of the Family Code is repealed.

SEC. 4.  

Section 6220 is added to the Family Code, to read:

6220.  

The purpose of this division is to provide expeditious
and effective protection from abuse to ensure that the lives of
domestic violence victims and their children will be as safe, secure,
and uninterrupted as possible.

SEC. 5.  

Section 6300 of the Family Code is amended to read:

6300.  

(a) An order may be issued under this part, with or
without notice, to restrain any person for the purpose specified in
Section 6220, if an affidavit or, if necessary, an affidavit and any
additional information provided to the court pursuant to Section
6306, shows, to the satisfaction of the court, reasonable proof of
a past act or acts of abuse. The court may issue an order under this
part based solely on the affidavit or testimony of the person
requesting the restraining order.

(b) An order under this part may be issued on the basis of
evidence of past abuse, without any showing that the wrongful
acts will be continued or repeated.

SEC. 6.  

Section 6301 of the Family Code is amended to read:

6301.  

(a) An order under this part may be granted to any person
described in Section 6211, including a minor pursuant to
subdivision (b) of Section 372 of the Code of Civil Procedure.

(b) The right to petition for relief shall not be denied because
the petitioner has vacated the household to avoid abuse, and in the
case of a marital relationship, notwithstanding that a petition for
dissolution of marriage, for nullity of marriage, or for legal
separation of the parties has not been filed.

(c) The court shall not deny an order under this part begin delete solely
because of the length of time between an act of abuse and the filing
of the petition for the restraining order. end delete begin insert based in whole or in part
on the length of time between the issuance of an ex parte order
pursuant to Article 1 (commencing with Section 6320) of Chapter
2 and a hearing on an order that may be issued pursuant to Article
2 (commencing with Section 6340) of Chapter 2, or on the absence
of abuse during that time. end insert

begin insert

(d) (1) If the last incidence of abuse occurred five years or less
before the filing of a petition for an order under this part, a court
shall not deny the order solely because of the length of time
between the last incidence of abuse and the filing of the petition
for the order.

end insert begin insert

(2) If the last incidence of abuse occurred more than five years
before the filing of a petition for an order under this part, a court
may issue the order for the purposes specified in Section 6220.

end insert

SEC. 7.  

Section 6305 of the Family Code is amended to read:

6305.  

(a) The court shall not issue a mutual order enjoining
the parties from specific acts of abuse described in Section 6320
unless both of the following apply:

(1) Both parties personally appear and each party presents
written evidence of abuse or domestic violence.

(2) The court makes detailed findings of fact indicating that begin delete neither party end delete begin insert both parties end insert acted as a dominant aggressor and that
neither party acted primarily in self-defense.

(b) For purposes of subdivision (a), begin delete the dominant aggressor is
the person determined to be the most significant aggressor. In
identifying the dominant aggressor, the court shall consider the
intent of the law to protect victims of domestic violence from
continuing abuse, the threats creating fear of physical injury, the
history of domestic violence between the persons involved, and
whether either person involved acted in self-defense. end delete begin insert “dominant
aggressor” has the same meaning as described in paragraph (3)
of subdivision (c) of Section 836 of the Penal Code. end insert

begin insert

(c) The amendments made to this section by the act that added
this subdivision are not intended to impact any existing decisional
law regarding this section, and that decisional law should apply
equally to this section as it refers to “dominant aggressor” in
place of “primary aggressor.”

end insert

SEC. 8.  

Section 6340 of the Family Code is amended to read:

6340.  

(a) The court may issue any of the orders described in
Article 1 (commencing with Section 6320) after notice and a
hearing. When determining whether to make any orders under this
subdivision, the court shall consider whether failure to make any
of these orders may jeopardize the safety of the petitioner and the
children for whom the custody or visitation orders are sought. If
the court makes any order for custody, visitation, or support, that
order shall survive the termination of any protective order. The
Judicial Council shall provide notice of this provision on any
Judicial Council forms related to this subdivision.

(b) The court shall, upon begin delete the request of any party, issue a
statement of decision explaining the factual and legal basis for its
decision under this part pursuant to Section 632 of the Code of
Civil Procedure. If neither party requests a statement of decision,
and the trial court denies end delete begin insert approving or denying end insert a petition under
this part, begin delete it shall end delete state its reasons in writing or on the record.

(c) The court may issue an order described in Section 6321
excluding a person from a dwelling if the court finds that physical
or emotional harm would otherwise result to the other party, to a
person under the care, custody, and control of the other party, or
to a minor child of the parties or of the other party.

SEC. 9.  

Section 6345 of the Family Code is amended to read:

6345.  

(a) In the discretion of the court, the personal conduct,
stay-away, and residence exclusion orders contained in a court
order issued after notice and a hearing under this article may have
a duration of not more than five years, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. These
orders may be renewed, upon the request of a party, either for five
years or permanently, without a showing of any further abuse since
the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the orders.

(b) Notwithstanding subdivision (a), the duration of any orders,
other than the protective orders described in subdivision (a), that
are also contained in a court order issued after notice and a hearing
under this article, including, but not limited to, orders for custody,
visitation, support, and disposition of property, shall be governed
by the law relating to those specific subjects.

(c) The failure to state the expiration date on the face of the
form creates an order with a duration of five years from the date
of issuance.

(d) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party
who is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure,
of the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with
Section 6205) of Division 7 of Title 1 of the Government Code,
by service on the Secretary of State. If the party who is protected
by the order cannot be notified prior to the hearing for modification
or termination of the protective order, the court shall deny the
motion to modify or terminate the order without prejudice or
continue the hearing until the party who is protected can be
properly noticed and may, upon a showing of good cause, specify
another method for service of process that is reasonably designed
to afford actual notice to the protected party. The protected party
may waive his or her right to notice if he or she is physically
present in court and does not challenge the sufficiency of the notice.