New Legislation Re: Domestic Violence Restraining Orders
Commencing July 1, 2016, new legislation pertaining to the issues of domestic violence will take effect. These two new pieces of legislation are: Assembly Bill 439 and Assembly Bill 536. While changes in legislation might seem dense and boring, those going through divorce or custody battles, where claims of domestic violence are afloat, these two additions should be noted.
Assembly Bill 439 : Bill 439 deals with ensuring that orders made requiring participation in a batterer’s intervention program are followed. Often times, where a party requests a Domestic Violence Restraining Order, it is asked that the restrained party be ordered to complete a batterer’s intervention program (in Santa Clara County the class is 52 weeks). When the court makes a ruling on whether a permanent DVRO should be issued, in cases where the request for a DVRO is granted, it is extremely common for the Judge to order that the restrained party complete this class. However, once the class has been ordered, there are no real requirements or tasks placed upon the restrained party regarding enrollment in this class. However, Bill 439 changes that.
Commencing July 1, 2016, if the court orders a restrained party to participate in a batterer’s program, he/she must do all of the following:
(1) Register for the program by the deadline ordered by the court or, if no deadline is ordered, no later than 30 days from the date the order was issued.
(2) At the time of enrollment, the restrained party shall sign all necessary program consent forms for the program to release proof of enrollment, attendance records, and completion or termination reports to the court and the protected part (or his/her attorney). Note: the court and protected party may provide to the batterer’s program a fax number or mailing address so as to receive these records.
(3) Finally, the restrained party must provide the court and protected party with the name, address, and telephone number of the program. While there is no word on the penalty for failure to comply, it can certainly be said that the courts are looking to make an effort to ensure that restrained parties obtain the assistance they need in hopes of minimizing the issue of domestic violence as a whole.
Assembly Bill 536 : Bill 536 on the other hand addresses the filing of a Request for Domestic Violence Restraining Order. Specifically, this new legislation discusses how parties obtain a mutual DVRO. While the Bill became operative January 1, 2016, the Judicial Council (responsible for preparing the requisite forms for court filings) must generate forms incorporating the new legislation. So what is the legislation exactly? In order to obtain a mutual RO, all of the following requirements must be satisfied:
(1) Both parties must personally appear in court and present written evidence of abuse or domestic violence.
(2) The court must make detailed fact findings that each party acted as a primary aggressor and neither acted primarily in self-defense.
(3) The court must consider the “dominant aggressor” provisions in the Penal Code so as to determine whether both parties acted primarily as aggressors.
Further, both parties must file the mandatory Judicial Council restraining order applications. It is not enough for a party to file a response to the other party’s request setting forth facts of abuse or domestic violence. In other words, when one party files for a DVRO, if the restrained party believes that the abuse or domestic violence was mutual, then he/she needs to file his/her own Request for Domestic Violence Restraining Order. Merely going to court on the other party’s request and arguing that the abuse/violence was mutual will not be a defense.