Code Section Group

Family Code - FAM

DIVISION 10. PREVENTION OF DOMESTIC VIOLENCE [6200 - 6460]

  ( Division 10 repealed and added by Stats. 1993, Ch. 219, Sec. 154. )

PART 4. PROTECTIVE ORDERS AND OTHER DOMESTIC VIOLENCE PREVENTION ORDERS [6300 - 6389]

  ( Part 4 added by Stats. 1993, Ch. 219, Sec. 154. )

CHAPTER 2. Issuance of Orders [6320 - 6361]

  ( Chapter 2 added by Stats. 1993, Ch. 219, Sec. 154. )

ARTICLE 2. Orders Issuable After Notice and Hearing [6340 - 6347]
  ( Article 2 added by Stats. 1993, Ch. 219, Sec. 154. )

6340.
  

(a) (1) The court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought. If the court makes any order for custody, visitation, or support, that order shall survive the termination of any protective order. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision.

(2) (A) If at the time of a hearing with respect to an order issued pursuant to this part based on an ex parte temporary restraining order, the court determines that, after diligent effort, the petitioner has been unable to accomplish personal service, and that there is reason to believe that the restrained party is evading service, the court may permit an alternative method of service designed to give reasonable notice of the action to the respondent. Alternative methods of service include, but are not limited to, the following:

(i) Service by publication pursuant to the standards set forth in Section 415.50 of the Code of Civil Procedure.

(ii) Service by first-class mail sent to the respondent at the most current address for the respondent that is available to the court or delivering a copy of the pleadings and orders at the respondent’s home or place of employment, pursuant to the standards set forth in Sections 415.20 to 415.40, inclusive, of the Code of Civil Procedure.

(B) If the court permits an alternative method of service under this paragraph, the court shall grant a continuance to allow for the alternative service pursuant to Section 245.

(b) The court shall, upon denying a petition under this part, provide a brief statement of the reasons for the decision in writing or on the record. A decision stating “denied” is insufficient.

(c) The court may issue an order described in Section 6321 excluding a person from a dwelling if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.

(Amended by Stats. 2018, Ch. 219, Sec. 3. (AB 2694) Effective January 1, 2019.)

6341.
  

(a) If the parties are married to each other and no other child support order exists or if there is a presumption under Section 7611 that the respondent is the natural father of a minor child and the child is in the custody of the petitioner, after notice and a hearing, the court may, if requested by the petitioner, order a party to pay an amount necessary for the support and maintenance of the child if the order would otherwise be authorized in an action brought pursuant to Division 9 (commencing with Section 3500) or the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom child support is requested, including safety concerns related to the financial needs of the petitioner and the children. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision.

(b) An order issued pursuant to subdivision (a) of this section shall be without prejudice in an action brought pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).

(c) If the parties are married to each other and no spousal support order exists, after notice and a hearing, the court may order the respondent to pay spousal support in an amount, if any, that would otherwise be authorized in an action pursuant to Part 1 (commencing with Section 3500) or Part 3 (commencing with Section 4300) of Division 9. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner, including safety concerns related to the financial needs of the petitioner. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision.

(d) An order issued pursuant to subdivision (c) shall be without prejudice in a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties.

(Amended by Stats. 2005, Ch. 22, Sec. 63. Effective January 1, 2006.)

6342.
  

(a) After notice and a hearing, the court may issue any of the following orders:

(1) An order that restitution be paid to the petitioner for loss of earnings and out-of-pocket expenses, including, but not limited to, expenses for medical care and temporary housing, incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse.

(2) An order that restitution be paid by the petitioner for out-of-pocket expenses incurred by a party as a result of an ex parte order that is found by the court to have been issued on facts shown at a noticed hearing to be insufficient to support the order.

(3) An order that restitution be paid by the respondent to any public or private agency for the reasonable cost of providing services to the petitioner required as a direct result of the abuse inflicted by the respondent or any actual injuries sustained therefrom.

(b) An order for restitution under this section shall not include damages for pain and suffering.

(Added by Stats. 1993, Ch. 219, Sec. 154. Effective January 1, 1994.)

6343.
  

(a) After notice and a hearing, the court may issue an order requiring the restrained party to participate in a batterer’s program approved by the probation department as provided in Section 1203.097 of the Penal Code.

(b) (1) Commencing July 1, 2016, if the court orders a restrained party to participate in a batterer’s program pursuant to subdivision (a), the restrained party shall do all of the following:

(A) Register for the program by the deadline ordered by the court. If no deadline is ordered by the court, the restrained party shall register no later than 30 days from the date the order was issued.

(B) At the time of enrollment, 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 party, or his or her attorney. The court and the protected party may provide to the program a fax number or mailing address for purposes of receiving proof of enrollment, attendance records, and completion or termination reports.

(C) Provide the court and the protected party with the name, address, and telephone number of the program.

(2) By July 1, 2016, the Judicial Council shall revise or promulgate forms as necessary to effectuate this subdivision.

(c) The courts shall, in consultation with local domestic violence shelters and programs, develop a resource list of referrals to appropriate community domestic violence programs and services to be provided to each applicant for an order under this section.

(Amended by Stats. 2015, Ch. 72, Sec. 1. (AB 439) Effective January 1, 2016.)

6344.
  

(a) After notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.

(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney’s fees and costs, the court shall, if appropriate based on the parties’ respective abilities to pay, order that the respondent pay petitioner’s attorney’s fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney’s fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay.

(Amended by Stats. 2004, Ch. 472, Sec. 6. Effective January 1, 2005.)

6345.
  

(a) In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The request for renewal may be brought at any time within the three months before the expiration of the orders.

(b) Notwithstanding subdivision (a), the duration of any orders, other than the protective orders described in subdivision (a), that are also contained in a court order issued after notice and a hearing under this article, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects.

(c) The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance.

(d) If an action is filed for the purpose of terminating or modifying a protective order prior to the expiration date specified in the order by a party other than the protected party, the party who is protected by the order shall be given notice, pursuant to subdivision (b) of Section 1005 of the Code of Civil Procedure, of the proceeding by personal service or, if the protected party has satisfied the requirements of Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code, by service on the Secretary of State. If the party who is protected by the order cannot be notified prior to the hearing for modification or termination of the protective order, the court shall deny the motion to modify or terminate the order without prejudice or continue the hearing until the party who is protected can be properly noticed and may, upon a showing of good cause, specify another method for service of process that is reasonably designed to afford actual notice to the protected party. The protected party may waive his or her right to notice if he or she is physically present in court and does not challenge the sufficiency of the notice.

(Amended (as amended by Stats. 2010, Ch. 572) by Stats. 2011, Ch. 101, Sec. 4. (AB 454) Effective January 1, 2012.)

6346.
  

The court may make appropriate custody and visitation orders pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12) after notice and a hearing under this section when the party who has requested custody or visitation has not established a parent and child relationship under subparagraph (B) of paragraph (2) of subdivision (a) of Section 6323, but has taken steps to establish that relationship by filing an action under the Uniform Parentage Act.

(Added by Stats. 1997, Ch. 396, Sec. 3. Effective January 1, 1998.)

6347.
  

(a) Commencing July 1, 2016, in order to ensure that the requesting party can maintain an existing wireless telephone number, and the wireless numbers of any minor children in the care of the requesting party, the court may issue an order, after notice and a hearing, directing a wireless telephone service provider to transfer the billing responsibility for and rights to the wireless telephone number or numbers to the requesting party, if the requesting party is not the accountholder.

(b) (1) The order transferring billing responsibility for and rights to the wireless telephone number or numbers to a requesting party shall be a separate order that is directed to the wireless telephone service provider. The order shall list the name and billing telephone number of the accountholder, the name and contact information of the person to whom the telephone number or numbers will be transferred, and each telephone number to be transferred to that person. The court shall ensure that the contact information of the requesting party is not provided to the accountholder in proceedings held pursuant to Division 10 (commencing with Section 6200).

(2) The order shall be served on the wireless service provider’s agent for service of process listed with the Secretary of State.

(3) Where the wireless service provider cannot operationally or technically effectuate the order due to certain circumstances, including, but not limited to, any of the following, the wireless service provider shall notify the requesting party within 72 hours of receipt of the order:

(A) When the accountholder has already terminated the account.

(B) When differences in network technology prevent the functionality of a device on the network.

(C) When there are geographic or other limitations on network or service availability.

(c) (1) Upon transfer of billing responsibility for and rights to a wireless telephone number or numbers to a requesting party pursuant to subdivision (b) by a wireless telephone service provider, the requesting party shall assume all financial responsibility for the transferred wireless telephone number or numbers, monthly service costs, and costs for any mobile device associated with the wireless telephone number or numbers.

(2) This section shall not preclude a wireless service provider from applying any routine and customary requirements for account establishment to the requesting party as part of this transfer of billing responsibility for a wireless telephone number or numbers and any devices attached to that number or numbers, including, but not limited to, identification, financial information, and customer preferences.

(d) This section shall not affect the ability of the court to apportion the assets and debts of the parties as provided for in law, or the ability to determine the temporary use, possession, and control of personal property pursuant to Sections 6324 and 6340.

(e) No cause of action shall lie against any wireless telephone service provider, its officers, employees, or agents, for actions taken in accordance with the terms of a court order issued pursuant to this section.

(f) The Judicial Council shall, on or before July 1, 2016, develop any forms or rules necessary to effectuate this section.

(Added by Stats. 2015, Ch. 415, Sec. 2. (AB 1407) Effective January 1, 2016.)

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