California Family Code Section 6305
In Conness v. Satram (2004) 122 Cal.App.4th 197, the court concluded that under Family Code section 6305 "written findings are necessary to ensure that mutual restraints are imposed only after a careful consideration of the evidence by the court."
The court discussed the legislative history of Family Code section 6305:
"When enacted in 1993, section 6305 provided: 'The court may not issue a mutual restraining order . . . unless both parties personally appear and each party presents written evidence of abuse or domestic violence. In this case, written evidence is not required if both parties agree that this requirement does not apply.' (Stats. 1993, ch. 219, 154, p. 1600.) The 1995 amendment eliminated the waiver provision and added a requirement that the court make detailed factual findings supporting the conclusion that both parties acted primarily as aggressors and neither acted primarily in self-defense. (Stats. 1995, ch. 246, 2, p. 852.) This amendment helps ensure that a mutual order is the product of the careful evaluation of a thorough record and not simply the result of the moving party yielding to the other party's importunities or the court deciding that a mutual order is an expedient response to joint claims of abuse." (Conness, supra, at p. 204.)
In Conness the court relied on Sommi v. Ayer (Mass.App.Ct. 2001) 51 Mass. App. Ct. 207, 744 N.E.2d 679, in which Massachusetts' mutual restraining order statute expressly required "specific written findings of fact" in "a detailed order." (Id. at p. 680, fn. 2; Conness, supra, 122 Cal.App.4th at pp. 203-204 & fn. 9.)
The Conness court's conclusion pertaining to written findings, however, was unnecessary to its opinion, or dicta, and thus it has no force as precedent. (Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 376.)
In Conness, the court held that restraining orders issued to the parties at separate hearings were not mutual restraining orders subject to section 6305, and thus the statute was inapplicable.
The court noted that the problems addressed by the 1995 amendment to section 6305 "would seem to be reduced substantially when the restraints are imposed in separate hearings. Certainly, nothing in our record suggests that . . . the court simply found it more convenient to agree to mutual restraints than to insist on a just result." (Conness, supra, 122 Cal.App.4th at pp. 204-205.)