The CA Judicial council allows the public to provide a proposal under CA rules of court 10.21 relating to rules, forms etc and a draft proposal.
Pursuant to California Rules of court 10.21, the members of the public hereby present a proposal to amend the notice requirements of a temporary restraining order and reasons for denial of a temporary restraining orders for all family law cases in California.
The current DV-109 form only specifies that two reasons apply for denial of a temporary restraining order until a noticed hearing. http://www.courts.ca.gov/documents/dv109.pdf They include:
1. The facts as stated in form DV-100 do not include reasonable acts of abuse or past acts of abuse.
2. The facts do not describe in sufficient detail the most recent facts of abuse.
A third category mandated by the legislature is missing. Pursuant to CA family code 241: “Except as provided in Section 6300, an order described in Section 240 may not be granted without notice to the respondent unless it appears from facts shown by the declaration in support of the petition for the order, or in the petition for the order, that great or irreparable injury would result to the petitioner before the matter can be heard on notice”.
The public is requesting the inclusion of a third category on the DV-109 form, as follows:
The facts as stated in form DV-100 do not substantiate that great or irreparable injury will result to the petitioner before the matter can be heard on notice pursuant to CA family code 241.
CA judicial officials routinely confuse the categories when granting or denying restraining orders and the third category would enable the relevant judicial officer to recognize that there are incidents of abuse that require restraint; however, that a noticed hearing is required as there is no immediate threat of great or irreparable injury.
The Domestic violence prevention act (DVPA) authorizes the trial court to issue a restraining order “for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit … shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§§ 6300, 6220 [purpose of DVPA stated].). A restraining order may issue under the DVPA either enjoining specific acts of abuse,” “excluding a person from a dwelling,” or “enjoining other specified behavior” and may issue ex parte, after notice and a hearing, or in a judgment. (§ 6218.)
For purposes of the DVPA, “`abuse’ means any of the following: [¶] (a) Intentionally or recklessly to cause or attempt to cause bodily injury [¶] (b) Sexual assault. [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to § 6320.” (§ 6203, italics added.) The behavior specified in § 6320 includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.”
The public is also requesting that the notice requirement of any domestic violence restraining order be included in greater detail on the DV-109 form and any granted restraining order, to specify to any law enforcement agency that notice of any restraining order is required in order to criminally enforce a restraining order.
Pursuant to CA family code 6383.
(a) A temporary restraining order or emergency protective order issued under this part shall, on request of the petitioner, be served on the respondent, whether or not the respondent has been taken into custody, by any law enforcement officer who is present at the scene of reported domestic violence involving the parties to the proceeding.(b) The petitioner shall provide the officer with an endorsed copy of the order and a proof of service that the officer shall complete and transmit to the issuing court.(c) It is a rebuttable presumption that the proof of service was signed on the date of service.(d) Upon receiving information at the scene of a domestic violence incident that a protective order has been issued under this part, or that a person who has been taken into custody is the respondent to that order, if the protected person cannot produce an endorsed copy of the order, a law enforcement officer shall immediately inquire of the Department of Justice Domestic Violence Restraining Order System to verify the existence of the order.
(e) If the law enforcement officer determines that a protective order has been issued, but not served, the officer shall immediately notify the respondent of the terms of the order and where a written copy of the order can be obtained and the officer shall, at that time, also enforce the order. The law enforcement officer’s verbal notice of the terms of the order shall constitute service of the order and is sufficient notice for the purposes of this section and for the purposes of Sections 273.6 and 29825 of the Penal Code.
(f) If a report is required under Section 13730 of the Penal Code, or if no report is required, then in the daily incident log, the officer shall provide the name and assignment of the officer notifying the respondent pursuant to subdivision (e) and the case number of the order.
(g) Upon service of the order outside of the court, a law enforcement officer shall advise the respondent to go to the local court to obtain a copy of the order containing the full terms and conditions of the order.
The clear language of the statute mandates the notice requirements, currently not included on the DV-109 form. We, the public, request the judicial council to consider the proposed changes.