(2023) Update on Discovery and Domestic Violence - How does evidence come in at Domestic Violence Restraining Order Hearings?
Domestic violence is an urgent public safety and public health crisis. More than one in three California women and one in seven men experience intimate partner physical violence, intimate partner sexual violence, or intimate partner stalking in their lifetimes. Domestic violence accounts for more than 15 percent of all violent crimes in California and more than 10 percent of all California homicides.
Domestic violence survivors are most at risk when attempting to leave an abusive relationship. Without effective intervention in domestic abuse, the violence often increases in frequency and severity over time. Research has established that the civil domestic violence restraining order is the most effective legal remedy for intervening in and preventing future abuse.
Domestic violence survivors who enter the family or civil court systems seeking protection often face ongoing abuse in the form of litigation abuse. Litigation abuse is the use of legal or bureaucratic procedures by abusive partners to continue to attack, harass, intimidate, coercively control, or maintain contact with their former partners through the litigation system by exerting power over them, forcing them to have contact, financially burdening them with excessive discovery and litigation, degrading and insulting them in legal papers, unduly delaying the court process and final resolution of important issues, or dissuading them from pursuing legal protection. Studies show that litigation abuse causes severe consequences for survivors, including economic hardship and psychological harm, and foregoing legal relief in part or in whole. Research also shows that judicial officers and court evaluators often misunderstand or overlook litigation abuse and its effects on survivors.
(Fam code § 6309)
Family Code § 6309 was approved October 08, 2023, by Governor Newsom. The Legislature's intent for the new code is to:
(A) To promote the health and safety of domestic violence survivors and their children.
(B) To ensure that domestic violence survivors can seek and receive, without delay, the protection offered by the domestic violence restraining orders, which are remedial injunctive orders intended to offer expedited separation and protection from abuse.
(C) To provide for separation and to prevent future acts of domestic violence by streamlining any domestic violence restraining order discovery to expedite the adjudication of requests for restraining orders and prevent abusive litigation tactics that interfere with legislative intent to protect domestic violence victims.
Family Code §6309 states:
Discovery pursuant to the Civil Discovery Act is not permitted pursuant to this part except as set forth in this section:
(c) (1) A court may grant a request for discovery only upon a showing of good cause for the discovery by the party making the request.
(2) A party may make an oral or written request for discovery to the court at an evidentiary hearing pursuant to this part.
(3) A person shall not be required to make a written objection or response to a request for discovery but may express any objection or response orally or in writing or at the hearing.
(d) In determining whether to permit discovery in a proceeding pursuant to this part, the court shall consider all of the following:
- The importance and relevance of, and need for, the information sought to be obtained.
- The likelihood that the information may be acquired by another permitted discovery method or may be acquired by other methods including pleadings or examination at the hearing.
- The delay in completion of the hearing, which is entitled to calendar preference pursuant to Section 244, if the discovery is permitted.
- The potential, if any, that the discovery may induce trauma in any person involved in the proceeding.
- Whether one or more persons are subject to any restraining or protective orders.
- Any other factor that may affect the prompt and fair resolution of the proceeding.
(e) If a court finds good cause and grants a request for discovery pursuant to subdivision (c), the court may do either of the following:
- (1) (A) Continue the commencement of hearing for a reasonable period to permit one or more methods of discovery.
(B) If the court continues the hearing to allow for discovery pursuant to subparagraph (A), the court shall extend, and may modify, any restraining order in place.
- (2) Commence the hearing to receive evidence and then continue the hearing to permit one or more methods of discovery.
(f) The court shall limit and control any permitted discovery to the least intrusive methods as authorized pursuant to the Civil Discovery Act and the minimum number of items reasonably necessary to secure the requested information. The court shall specify the time for response to any permitted discovery after considering the items in subdivision (d).
(g) Nothing in this section is intended to take away rights afforded in the Domestic Violence Prevention Act. Nothing in this section is intended to infringe on the ability for abuse survivors to receive their police reports and evidence pursuant to Section 6228 or on parties' ability to discover their own business records without obtaining court permission, including medical records, phone records, or recordings of calls to 911, to provide corroborating proof.