The Domestic Violence Protection Act authorizes a judicial officer to issue a protective order after notice and a hearing for the purpose of preventing acts of domestic violence, abuse, and sexual abuse and ensuring a period of separation of the persons involved in the domestic violence. The act defines domestic violence as abuse perpetrated against specified persons, and further defines abuse within that context. 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 as a primary aggressor and that neither party acted primarily in self-defense.

This bill would require each party to present written evidence of abuse or domestic violence on an application for relief using a mandatory Judicial Council restraining order application form, and would specify, for these purposes, written evidence of abuse or domestic violence in a responsive pleading does not satisfy the partys obligation to present written evidence of abuse or domestic violence. The bill would require the Judicial Council, by July 1, 2016, to modify forms as necessary to provide notice of this information.

The Domestic Violence Protection Act authorizes a judicial officer to issue a protective order after notice and a hearing for the purpose of preventing acts of domestic violence, abuse, and sexual abuse and ensuring a period of separation of the persons involved in the domestic violence. The act defines domestic violence as abuse perpetrated against specified persons, and further defines abuse within that context. 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 as a primary aggressor and that neither party acted primarily in self-defense.

This bill would require each party to present written evidence of abuse or domestic violence on an application for relief using a mandatory Judicial Council restraining order application form, and would specify, for these purposes, written evidence of abuse or domestic violence in a responsive pleading does not satisfy the partys obligation to present written evidence of abuse or domestic violence. The bill would require the Judicial Council, by July 1, 2016, to modify forms as necessary to provide notice of this information.

The Domestic Violence Protection Act authorizes a judicial officer to issue a protective order after notice and a hearing for the purpose of preventing acts of domestic violence, abuse, and sexual abuse and ensuring a period of separation of the persons involved in the domestic violence. The act defines domestic violence as abuse perpetrated against specified persons, and further defines abuse within that context. 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 as a primary aggressor and that neither party acted primarily in self-defense.

This bill would require each party to present written evidence of abuse or domestic violence on an application for relief using a mandatory Judicial Council restraining order application form, and would specify, for these purposes, written evidence of abuse or domestic violence in a responsive pleading does not satisfy the partys obligation to present written evidence of abuse or domestic violence. The bill would require the Judicial Council Council, by July 1, 2016, to include on the forms used to respond to a request for a restraining order a specified statement. modify forms as necessary to provide notice of this information.

The Domestic Violence Protection Act authorizes a judicial officer to issue a protective order after notice and a hearing for the purpose of preventing acts of domestic violence, abuse, and sexual abuse and ensuring a period of separation of the persons involved in the domestic violence. The act defines domestic violence as abuse perpetrated against specified persons, and further defines abuse within that context. 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 as a primary aggressor and that neither party acted primarily in self-defense.

This bill would require each party to present written evidence of abuse or domestic violence on an application for relief using a mandatory Judicial Council restraining order application form, and would specify, for these purposes, written evidence of abuse or domestic violence in a responsive pleading does not satisfy the partys obligation to present written evidence of abuse or domestic violence. The bill would require the Judicial Council to include on the forms used to respond to a request for a restraining order a specified statement.

 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:

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).)

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 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 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.: Yes Local: No

SUPPORT: (Verified 6/22/15)

Executive Committee of the Family Law Section of the State Bar (source)

California Partnership to End Domestic Violence

OPPOSITION: (Verified 6/22/15)

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.

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

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 536 (Author:Bloom)

Version: April 8, 2015

Hearing Date: June 9, 2015

Fiscal: Yes

Urgency: No

Consultant: NR

SUBJECT

Domestic violence: protective orders

DESCRIPTION

This bill would prohibit 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 would also require, 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 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 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, would authorize 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.

CHANGES TO EXISTING LAW

Existing law 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.)

Existing law 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.)

Existing law 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.)

Existing law 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).)

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:

• no cross or counter petition was filed seeking such a protection order; or

• 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).)

This bill would prohibit 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.

This bill would provide 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.

This bill would require, by July 1, 2016, the Judicial Council to modify forms as necessary to provide notice of this information. 

COMMENT

1. Stated need for the bill

According to the author:

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.

2. Clarifies that, prior to the issuance of a mutual restraining order, parties must provide evidence of domestic violence in a petition.

Depending on type, domestic violence protective orders may last days, weeks, years, or even permanently. Emergency protective orders (EPO), issued by a judicial officer upon specific assertions by a law enforcement officer, expire on the earliest of the fifth court day, or seventh calendar day following issuance. In contrast, requests for temporary restraining orders (TROs) are filed with the court and become effective upon receiving a judge’s signature and being served on the batterer. TROs may be granted ex parte, without formal notice to, or presence of the batterer, and are issued or denied on the date of application, unless the application is filed too late to permit effective review. (Fam. Code Sec. 6326.) TROs are generally effective for 21 days or until a hearing on the matter. After proper notice and hearing, a restraining order may be granted for up to five years, subject to future modification. At that hearing, the petitioner must make a showing of past acts of abuse and the likelihood of continuing abusive conduct on the respondent’s part. Upon request, that order may be renewed for another five years, or permanently. (Fam. Code Sec. 6345.)

Under existing law, the court may not issue mutual protective orders unless both parties personally appear and each party presents written evidence of abuse, and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and neither party acted in self-defense. According to the Executive Committee of the Family Law Section of the State Bar (FLEXCOM), sponsor of this bill, this requirement in existing law lacks clarity. FLEXCOM writes:

Some courts have issued mutual restraining orders based on allegations of abuse contained in responsive papers (an “Answer”), rather than in an affirmative application for a restraining order. This has also created inconsistencies among the courts in their consideration and determination of restraining orders.

Issuing a restraining order on the basis of responsive papers violates due process, because the party against whom the order was issued on the basis of an Answer did not have proper notice that the issuance of mutual orders was before the court. Orders issued without proper notice are unfair to the restrained party and also cause enforcement problems, as they are not entitled to full faith and credit under the federal Violence Against Women Act.

Accordingly, this bill would require that both parties submit written evidence of domestic violence in a petition, before the court may issue a mutual restraining order. While courts may still issue a mutual EPO or TRO, this bill would ensure that parties’ due process rights are protected by providing an opportunity to respond to allegations of abuse before an order is issued after notice and hearing, which may be granted for up to five years. Further, to ensure that self-represented litigants understand how to seek or defend against mutual protective orders, this bill would require the Judicial Council to update, by July 1, 2016, forms and information sheets related to domestic violence restraining orders.

Support: California Partnership to End Domestic Violence

Opposition: None Known

HISTORY

Source: Executive Committee of the Family Law Section of the State Bar (FLEXCOM)

Related Pending Legislation: None Known

Prior Legislation: AB 2089 (Quirk, Chapter 635, Statutes of 2014) made various changes to the Domestic Violence Prevention Act (DVPA) including clarifying the definition of “abuse” by providing that abuse is not limited to the actual infliction of physical injury or assault, and revising and recasting language related to mutual protective orders.

Prior Vote:

Assembly Floor (Ayes 77, Noes 0)

Assembly Appropriations Committee (Ayes 17, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

Date of Hearing: April 22, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 536

Author:(Bloom) – As Amended Ver:April 8, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill clarifies the requirements necessary before a court can issue a mutual restraining order. Specifically, this bill:

1. Provides that a court may not issue a mutual restraining order unless, among other things, 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 in a responsive pleading does not satisfy the requirement that the written evidence of abuse or domestic violence must be presented to a court before it can issue a mutual restraining order.

3. Requires Judicial Council, by July 1, 2016, to modify forms as necessary to provide notice of these requirements.

FISCAL EFFECT:

Minor and absorbable costs for the Judicial Council to modify the necessary forms.

COMMENTS:

1. Purpose and Background. A mutual restraining order is a single order that restrains both the petitioner and the respondent. Existing law requires that before a court can issue such an order, both parties must appear and present written evidence of abuse and the court must find that neither party acted as the primary aggressor. These requirements are designed to ensure that a court only issues a mutual restraining order when one is truly warranted. This bill clarifies that the written evidence of abuse must be submitted on an application for affirmative relief, and not simply as part of a responsive pleading.

This bill is consistent with federal law, which provides, under the Violence Against Women Act, that a protective order is only entitled to full faith and credit if issued against a party who has petitioned for a restraining order in a "cross or counter petition" (i.e., not an Answer). Thus the clarification in this bill will help ensure that California restraining orders are entitled to full faith and credit (allowing the order to be enforced in another state).

2. Judicial Council Forms. To assist parties seeking or defending against a domestic violence restraining order, the vast majority of whom -- upwards of 90 percent, according to the Judicial Council -- are unrepresented, the Judicial Council has a series of forms and instruction sheets for domestic violence retraining orders. These forms are written in relatively simple English and translated into four languages. This bill requires that the forms be updated, as appropriate, to ensure the parties understand that a mutual restraining order can only be issued if both parties provide written evidence of abuse on the application for relief form and not the response form.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: April 7, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 536

Author:(Bloom) – As Introduced Ver:February 23, 2015

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Domestic violence: mutual restraining orders

KEY ISSUE: SHOULD THE WRITTEN EVIDENCE OF ABUSE NECESSARY FOR ISSUANCE OF A MUTUAL RESTRAINING ORDER BE REQUIRED TO BE SUBMITTED IN AN APPLICATION FOR RELIEF AND NOT AS PART OF A RESPONSIVE PLEADING?

SYNOPSIS

This non-controversial bill, sponsored by the Family Law Section of the State Bar, seeks to clarify the requirements necessary before a court can issue a mutual restraining order. A mutual restraining order is a single order that restrains both the petitioner and the respondent. Existing law requires that before a court can issue such an order, both parties must appear and present written evidence of abuse and the court must find that neither party acted as the primary aggressor. These requirements are designed to ensure that a court only issues a mutual restraining order when one is truly warranted. This bill clarifies that the written evidence of abuse must be submitted on an application for affirmative relief, and not simply as part of a responsive pleading. The bill is supported by the California Partnership to End Domestic Violence and there is no known opposition.

SUMMARY: Requires that written evidence of abuse necessary for issuance of a mutual restraining order be provided to the court on an application for relief. Specifically, this bill:

1. Provides that a court may not issue a mutual restraining order unless, among other things, 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 in a responsive pleading does not satisfy the requirement that the written evidence of abuse or domestic violence must be presented to a court before it can issue a mutual restraining order.

3. Requires Judicial Council, by July 1, 2016, to modify forms as necessary to provide notice of 1) and 2), above.

EXISTING LAW:

1. Authorizes a court, under the Domestic Violence Prevention Act, to issue and enforce a domestic violence restraining order, including an emergency protective order, a temporary restraining order and a permanent restraining order after hearing. (Family Code Sections 6300 et seq. Unless stated otherwise, all further statutory references are to that code.)

2. Prohibits a court from issuing a mutual restraining order, unless (a) both parties personally appear and present written evidence of abuse and (b) the court makes detailed findings indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense, as provided. (Section 6305.)

3. Defines, under the Penal Code, dominant aggressor in domestic violence, as the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, consideration must be given to (a) the intent of the law to protect victims of domestic violence from continuing abuse; (b) the threats creating fear of physical injury; (c) the history of domestic violence between the persons involved; and (d) whether either person involved acted in self-defense. (Penal Code Sections 836(c) and 13701(b).)

4. Does not, under the federal Violence Against Women Act, entitle a restraining order issued against a party who has petitioned for a restraining order against a spouse or intimate partner to full faith and credit if either: (a) no cross or counter petition was filed seeking such a protection order; or (b) 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).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill seeks to clarify the requirements necessary before a court can issue a mutual restraining order. A mutual restraining order is a single order that restrains both the petitioner and the respondent. Existing law requires that before a court can issue such an order, both parties must appear and present written evidence of abuse and the court must find that neither party acted as the primary aggressor. These requirements are designed to ensure that a court only issues a mutual restraining order when one is truly warranted. This bill clarifies that the written evidence of abuse must be submitted on an application for affirmative relief, and not simply as part of a responsive pleading.

Concerns About Mutual Restraining Orders: Victims’ advocates argue that mutual protective orders are often 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 addition, mutual restraining orders can reduce batterer accountability by holding both the victim and the batterer equally responsible for the violence. The California Partnership to End Domestic Violence, which supports the bill, succinctly sums up its concerns: "Mutual restraining orders have been found to be extremely problematic, sending contradictory signals as to who is responsible for the abuse and empowering the abuser while disempowering the survivor."

As a result, California limits mutual restraining orders to those situations where (1) both parties appear before the court and present written evidence of abuse to the court; and (2) the court makes detailed findings that both parties acted as primary aggressors and that neither acted primarily in self-defense. What is not clear in existing law is how the written evidence necessary for a court to make those findings has to be presented to the court.

Due Process Requires That Parties Have Sufficient Notice of What a Court is Being Asked to Do: The author and sponsor are concerned that the current requirement of written evidence before issuance of a mutual restraining order is not specific enough and could allow a party to submit written evidence on a responsive pleading (an Answer). The sponsor explains the problem with allowing such written evidence on the Answer: "Issuing a restraining order on the basis of responsive papers violates due process, because the party against whom the order was issued on the basis of an Answer did not have proper notice that the issuance of mutual orders was before the court. Orders issued without proper notice are unfair to the restrained party and also cause enforcement problems, as they are not entitled to full faith and credit under the federal Violence Against Women Act."

This bill clarifies that the required written evidence of abuse must be on an application for relief and cannot appear in a responsive pleading. This ensures that both parties are given sufficient notice of what is being sought in court and the opportunity to properly respond in court.

This bill is consistent with federal law, which provides, under the Violence Against Women Act, that a protective order is only entitled to full faith and credit if issued against a party who has petitioned for a restraining order in a "cross or counter petition" (i.e., not an Answer). Thus the clarification in this bill will help ensure that California restraining orders are entitled to full faith and credit (allowing the order to be enforced in another state).

Judicial Council Forms: To assist parties seeking or defending against a domestic violence restraining order, the vast majority of whom -- upwards of 90 percent, according to the Judicial Council -- are unrepresented, the Judicial Council has a series of forms and instruction sheets for domestic violence retraining orders. These include the following petition for an order form, response form, and information sheets:

• DV-100 -- Request for Domestic Violence Restraining Order

• DV-505-INFO -- Can a Domestic Violence Restraining Order Help Me?

• DV-120 -- Response to Request for Domestic Violence Restraining Order

• DV-120-INFO -- How Can I Respond to a Request for a Domestic Violence Restraining Order?

These forms are written in relatively simple English and translated into four languages. This bill requires that the forms be updated, as appropriate, to ensure the parties understand that a mutual restraining order can only be issued if both parties provide written evidence of abuse on the application for relief form and not the response form.

REGISTERED SUPPORT / OPPOSITION:

Support

Family Law Section of the State Bar (sponsor)

California Partnership to End Domestic Violence

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334