(a) Application of rule.
This rule applies when a family or juvenile law domestic violence protective order as defined in Family Code section 6218 or Welfare and Institutions Code section 213.5 is issued or in effect.
This rule addresses situations in which information is presented to the court about firearms and provides the court with options for appropriately addressing the issue. This rule is intended to:
(1) Assist courts issuing domestic violence protective orders in determining whether a restrained person has a firearm in or subject to his or her immediate possession or control.
(2) Assist courts that have issued domestic violence protective orders in determining whether a restrained person has complied with the court's order to relinquish, store, or sell the firearm under Family Code section 6389(c).
(c) Firearm determination.
When relevant information is presented to the court at any noticed hearing that a restrained person has a firearm, the court must consider that information to determine, by a preponderance of the evidence, whether the person subject to a protective order as defined in Family Code section 6218 or Welfare and Institutions Code section 213.5 has a firearm in or subject to his or her immediate possession or control in violation of Family Code section 6389.
(d) Determination procedures.
(1) In making a determination under this rule, the court may consider whether the restrained person filed a firearm relinquishment, storage, or sales receipt or if an exemption from the firearm prohibition was granted under Family Code section 6389(h).
(2) The court may make the determination at any noticed hearing when a domestic violence protective order is issued, at a subsequent review hearing, or at any subsequent family or juvenile law hearing while the order remains in effect.
(3) If the court makes a determination that the restrained person has a firearm in violation of Family Code section 6389, the court must make a written record of the determination and provide a copy to any party who is present at the hearing and, upon request, to any party not present at the hearing.
(e) Subsequent review hearing.
(1) When presented with information under (c), the court may set a review hearing to determine whether a violation of Family Code section 6389 has taken place.
(2) The review hearing must be held within 10 court days after the noticed hearing at which the information was presented. If the restrained person is not present when the court sets the review hearing, the protected person must provide notice of the review hearing to the restrained person at least 2 court days before the review hearing, in accordance with Code of Civil Procedure 414.10, by personal service or by mail to the restrained person's last known address.
(3) The court may for good cause extend the date of the review hearing for a reasonable period or remove it from the calendar.
(4) The court must order the restrained person to appear at the review hearing.
(5) The court may conduct the review hearing in the absence of the protected person.
(6) Nothing in this rule prohibits the court from permitting a party to appear by telephone under California Rules of Court, rule 5.9.
(f) Child custody and visitation.
(1) If the court determines that the restrained person has a firearm in violation of Family Code section 6389, the court must consider that determination when deciding whether the restrained person has overcome the presumption in Family Code section 3044.
(2) An order for custody or visitation issued at any time during a family law matter must be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members, as specified in Family Code section 3020. The court must consider whether the best interest of the child, based on the circumstances of the case, requires that any visitation or custody arrangement be limited to situations in which a third person, specified by the court, is present, or that visitation or custody be suspended or denied, as specified in Family Code section 6323(d).
(3) An order for visitation issued at any time during a juvenile court matter must not jeopardize the safety of the child, as specified in Welfare and Institutions Code section 362.1.
(g) Other orders.
(1) The court may consider a determination that the restrained person has a firearm in violation of Family Code section 6389 in issuing:
(A) An order to show cause for contempt under section 1209(a)(5) of the Code of Civil Procedure for failure to comply with the court's order to surrender or sell a firearm; or
(B) An order for money sanctions under section 177.5 of the Code of Civil Procedure.
(2) This rule should not be construed to limit the court's power to issue orders it is otherwise authorized or required to issue.
Rule 5.495 adopted effective July 1, 2014.
Advisory Committee Comment
When issuing a family or juvenile law domestic violence protective order as defined in Family Code section 6218 or Welfare and Institutions Code section 213.5, ex parte or after a noticed hearing, the court is required to order a restrained person "to relinquish any firearm in [that person's] immediate possession or control or subject to [that person's] immediate possession or control." (Fam. Code, § 6389(c)(1).) Several mandatory Judicial Council forms-Temporary Restraining Order (form DV-110), Restraining Order After Hearing (form DV-130), and Notice of Hearing and Temporary Restraining Order-Juvenile (form JV-250)-include mandatory orders in bold type that the restrained person must sell to or store with a licensed gun dealer or turn in to a law enforcement agency any guns or other firearms within his or her immediate possession or control within 24 hours after service of the order and must file a receipt with the court showing compliance with the order within 48 hours of receiving the order. California law requires personal service of the request for and any temporary protective order at least five days before the hearing, unless the court issues an order shortening time for service. Therefore, by the date of the hearing, the restrained person should have relinquished, stored, or sold his or her firearms and submitted a receipt to the court.
Courts are encouraged to develop local procedures to calendar firearm relinquishment review hearings for restrained persons.
Section (f) of this rule restates existing law on the safety and welfare of children and family members and recognizes the safety issues associated with the presence of prohibited firearms.
Although this rule does not require the court to compel a restrained person to testify, the court may wish to advise a party of his or her privilege against self-incrimination under the Fifth Amendment to the United States Constitution. The court may also consider whether to grant use immunity under Family Code section 6389(d).