BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 536|
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CONSENT
Bill No: AB 536
Author: Bloom (D)
Amended: 4/8/15 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/9/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 77-0, 4/30/15 (Consent) - See last page for
vote
SUBJECT: Domestic violence: protective orders
SOURCE: Executive Committee of the Family Law Section of the
State Bar
DIGEST: This bill prohibits a court from issuing a mutual
restraining order unless each party presents written evidence of
abuse or domestic violence in an application for relief using a
mandatory Judicial Council restraining order application form,
as specified. This bill also requires, by July 1, 2016, the
Judicial Council to modify forms as necessary to provide notice
of this information.
ANALYSIS: Existing federal law prohibits, under the federal
Violence Against Women Act, a restraining order from being
issued against a party who has petitioned for a restraining
order against a spouse or intimate partner to full faith and
credit if either:
AB 536
Page 2
1)No cross or counter petition was filed seeking such a
protection order; or
2)A cross or counter petition had been filed but the court did
not make specific findings that each party was entitled to
such an order. (18 U.S.C. Section 2265(c).)
Existing state law:
1)Establishes the Domestic Violence Prevention Act (DVPA), and
authorizes a court to issue a domestic violence protective
order enjoining a party from molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering,
harassing, telephoning, destroying personal property, and
other specified behaviors. (Fam. Code Sec. 6200 et seq.)
2)Authorizes the court to issue a protective order to prevent
recurrence of domestic violence based on information in an
affidavit, or, if necessary, an affidavit and any additional
information provided to the court regarding specified criminal
convictions. (Fam. Code Sec. 6300.)
3)Provides that a court shall not issue a mutual protective
order unless both parties appear and present written evidence
of abuse, and the court makes detailed findings indicating
that both parties acted primarily as aggressors, and neither
party acted primarily in self-defense. (Fam. Code Sec. 6305.)
4)Requires the court, in determining if both parties acted
primarily as aggressors, to consider the provisions concerning
dominant aggressors set forth in the Penal Code, which define
a dominant aggressor as the person determined to be the most
significant, rather than the first, aggressor, as specified.
(Fam. Code Sec. 6305(c); Pen. Code Secs. 836(c) and 13701(b).)
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This bill:
1)Prohibits a court from issuing a mutual restraining order
unless each party presents written evidence of abuse or
domestic violence in an application for relief using a
mandatory Judicial Council restraining order application form.
2)Provides that written evidence of abuse or domestic violence
in a responsive pleading does not satisfy the party's
obligation to present written evidence of abuse or domestic
violence.
3)Requires, by July 1, 2016, the Judicial Council to modify
forms as necessary to provide notice of this information.
Background
California authorizes a court to issue mutual protective orders
in situations where both parties appear before the court, and
the court makes detailed findings of fact that both parties
acted primarily as aggressors, and neither acted primarily in
self-defense. Victims' advocates claim that mutual protective
orders are based on misconceptions about domestic violence, and
encourage society to trivialize abuse or consider abuse too
minor to determine the identity of the "real" abuser. (Joan
Zorza, What is Wrong with Mutual Orders of Protection?, Family
and Intimate Partner Violence Quarterly, Vol. 1 No. 2, Fall
2008.)
In response to concerns regarding mutual restraining orders, the
Legislature enacted AB 2089 (Quirk, Chapter 635, Statutes of
2014) which required the court, in determining if both parties
acted primarily as aggressors, to consider the definition of
"dominant aggressor" set forth in the Penal Code, which defines
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Page 4
a dominant aggressor as the person determined to be the most
significant, rather than the first, aggressor, and requires the
court to consider: (1) the intent of the law to protect victims
of domestic violence from continuing abuse; (2) threats creating
fear of physical injury; (3) any history of domestic violence
between the persons involved; and (4) whether either person
involved acted in self-defense. (Fam. Code Sec. 6305(c); Pen.
Code Secs. 836(c) and 13701(b).)
Further, the American Bar Association instructs lawyers to
understand the power dynamics between two parties prior to
seeking a mutual restraining order and cautions that such orders
may be federally preempted under the Violence Against Women Act:
The lawyer should be aware of the dangers of mutual protection
orders. A mutual order is an order issued against both parties
(i.e., both the client and the respondent) on the basis of
only one petition. Because mutual orders are issued sua
sponte, without a petition by the respondent and a finding
that the respondent is entitled to protection, some
jurisdictions prohibit mutual orders, pursuant to statute.
Mutual orders are generally discouraged because they often
serve to further embolden the perpetrator to abuse and
discourage the victim from seeking legal assistance. Mutual
orders lack a finding of the predominant aggressor, and
frequently lead to unfair mutual arrest in any future incident
of abuse.
Lawyers should also be aware that according to the federal
Violence Against Women Act (VAWA), mutual orders are not
entitled to full faith and credit in other jurisdictions, and
the lawyer should counsel the client accordingly. If the
lawyer discovers that there is a mutual order in place, the
lawyer needs to identify who the original petitioner is. If
the original petition was filed by the perpetrator, the lawyer
should counsel the client to file an independent petition to
avoid the mutual protection order problem. The lawyer should
have a solid understanding of the dynamics of power and
control in order to effectively counsel clients about the
risks of agreeing to mutual orders. (Standards of Practice for
Lawyers Representing Victims of Domestic Violence, Sexual
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Assault and Stalking in Civil Protection Order Cases, American
Bar Association, (2007) pp. 9-10.)
This bill, seeking to ensure that mutual restraining orders are
only issued when appropriate and when both parties have a chance
to respond to allegations of abuse, authorizes a court to issue
mutual restraining orders only when parties present written
evidence of abuse or domestic violence in an application for
relief using a mandatory Judicial Council restraining order
application form.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified6/22/15)
Executive Committee of the Family Law Section of the State Bar
(source)
California Partnership to End Domestic Violence
OPPOSITION: (Verified6/22/15)
None received
ARGUMENTS IN SUPPORT: The author writes:
Family Code Section 6305 is not sufficiently specific with
regards to the type of written evidence of abuse that would
satisfy the requirements of this section. Some courts have
accepted a request for mutual restraining orders and
supporting written evidence of abuse presented in domestic
violence restraining order responsive declaration forms, which
creates potential due process and fairness issues as the other
party will not have proper notice and due process protections
provided through domestic violence restraining order
application forms.
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ASSEMBLY FLOOR: 77-0, 4/30/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,
Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Grove,
Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Campos, Chávez, Gomez
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
6/23/15 8:59:07
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