module 9 legal issues this curriculum is intended to be a tool to assist domestic violence service...

Module 9

Legal Issues

This curriculum is intended to be a tool to assist domestic violence service providers offering victim services (such as those outlined in California Penal Code §13823.15-13823.16) for the purpose of ensuring advocates working with survivors meet the requirements of a “Domestic Violence Counselor” pursuant to Evidence Code §1037.1(a)(1).

Objectives

• To understand the structure of the legal system in California

• To understand important legal terminology

• To be familiar with domestic violence related legal issues regarding: civil law, criminal law, and victim’s rights

Module 9 • Legal Issues • Published 2012 • Slide 2

Bell Hooks

Justice demands integrity. It's to have a moral universe — not only know what is right or wrong but to put

things in perspective, weigh things. Justice is different from violence and

retribution; it requires complex accounting.


Introduction to the Legal System


Group Discussion

What do you know about civil, criminal,and superior courts?


Civil Court

Handles actions filed by an individual against another individual.

A party may bring civil suit if: • They are injured by another party’s violation of a civil law

• They wish to prevent the other party from doing something. – Example, a restraining order prevents the restrained person from coming into

contact with the person who filed the action

• They wish to characterize the legal nature of one person’s relationship to another.

– Example, divorce, custody, guardianship

The goal of criminal court is to provide relief to the party bringing the action. The aim is not to punish the other party.

Violation of the civil law is not punishable by imprisonment. However, a violation of a civil court order is contempt of court,

which is punishable by imprisonment. Module 9 • Legal Issues • Published 2012 • Slide 6

Criminal Court

Criminal cases are NOT actions taken by the victim against the perpetrator.

Rather, the criminal court involves actions brought by the State against an individual, because the state believes that person

has violated a criminal law (Penal Code Section).

The victim is only a witness in the case and is not represented by an attorney. The State can move forward without the

cooperation of the victim.

Orders issued in criminal court are primarily used to punish an individual for violating the law. Violation of criminal law is

punishable by imprisonment, as well as other forms of punishment.


Superior Court

The Superior Court of California has trial jurisdiction over all criminal and

civil cases.

There are 58 trial courts, one in each county, which all belong to the Superior Court of California.


Possible “Actions” in Court

Civil Court

Dissolution/ Divorce

Custody/ Visitation

Child/Spousal Support

Restraining Order

Order to Show Cause

Ex Parte

Criminal Court

Complaint for Felony or Misdemeanor

Criminal Protective Order


Criminal Laws Related To Domestic Violence

1. Murder (Penal Code Section 187)2. Burglary (Penal Code Section 459)3. False Imprisonment (Penal Code Section 236)4. Kidnapping (Penal Code Section 207)5. Mayhem (Penal Code Section 203)6. Rape (Penal Code Section 261)7. Spousal Rape (Penal Code Section 262)8. Battery (Penal Code Section 243(e))9. Spousal Abuse (Penal Code Section 273.5)10. Violation of a restraining order (Penal Code Section273.6)11. Stalking (Penal Code Section 646.9)12. Threatening or harassing phone calls (Penal Code Section

653m)13. Terrorist threats (Penal Code Section 422)14. Animal abuse (Penal Code Section 597)


Who’s Who in Civil and Criminal

Courts


Judge

An elected or appointed public official with authority to hear and decide

cases in both civil and criminal courts.

Some courts appoint a Commissioner who is directed to act as a temporary judge in some cases or proceedings.


Attorney/Counsel

Civil Court

Attorney/ Council: A lawyer who is qualified

to represent clients in court and give them

legal advice.

In Pro Per: When a person

represents themselves without a lawyer.

Criminal CourtDistrict Attorney/ Prosecutor: A lawyer appointed or elected to

represent the state in criminal cases

Defense Attorney: The lawyer who represents the

accused person in a criminal case

Public Defender: A lawyer chosen by the court to

represent a defendant who cannot afford an attorney.


Involved Parties

Civil Court

Plaintiff/Petitioner: The persons that files

a lawsuit

Defendant/Respondent:

The person being sued

Criminal Court

Defendant: The person accused

of a crime by the State


Mediator

A neutral person who encourages and facilitates

the resolution of a dispute to reach a mutually

acceptable agreement.

Example: Courts will use a Mediator in custody

agreementsor

property division in a divorce or dissolutionModule 9 • Legal Issues • Published 2012 • Slide 15

Court Interpreter

A person with specialized training who is certified

by the State or registered as being able tointerpret, orally or in writing, spoken or signlanguage into the common language of the

court.

Example: Spanish to English Interpretation of court

proceedingsModule 9 • Legal Issues • Published 2012 • Slide 16

Victim Witness Assistance Advocate

There are 59 Victim Witness Assistance Centers — one in each

county. Victim witness assistance advocates are trained toprovide crisis counseling, orientation to the criminal justicesystem, community referrals, assistance with applying for

victim compensation, and many other services.

Most are housed within the District Attorney’s office—only 5are non-profit organizations. They are considered to be

agentsof the DA’s office.

These advocates do not have the same level of confidentiality

that domestic violence advocates enjoy. Therefore, anythingshared with them can and will be shared with the district

attorney. Module 9 • Legal Issues • Published 2012 • Slide 17

Group Discussion

Other than the people/organizations we

have already discussed, who else might be

involved in a court case and why?


Other Participants

• Domestic Violence Advocate• Child Protective Services• CASA (Court Appointed Special Advocates)• Legal Aid• Family Law Facilitators • Probation Department• Law Enforcement• Medical Professionals


Understanding Legal Actions


Legally Ending a Relationship

There are three ways to legally end arelationship:

DivorceSeparationAnnulment


Dissolution (Divorce)

A marriage or domestic partnership that is ended

by an order of a judge.

Prior to a dissolution both parties must come to an agreement on asset and debt division,

child custody/visitation arrangements, child/spousal support, former name

restoration, and restraining orders.


Legal Separation

A judicial order in which spouses or domestic partners live apart from one

other while remaining married or registered to each other. Issues that must be resolved prior to separation are similar

to those of a dissolution.


Annulment/Nullity

A legal annulment means that the marriage/partnership was invalid from its inception, and is only granted under very

limited grounds.

An annulment of a marriage or domestic partnership can only be requested based on

one of the following reasons:

Incest, bigamy, underage marriage, prior existing marriage or domestic partnership, unsound mind,

fraud, force, or incapacity


Uniform Parentage Act (UPA)

Used to officially establish a parent-child relationship with the father. Once that is established the court

may make orders relating to custody, visitation, and support issues.

Family Code Sections 7710, 7720, 7730


Child Custody

The rights and responsibilities between parents for their children. Custody is comprised of where the children live, who takes care of

them, and how much time is spent with each parent.

Court decisions regarding child custody are based on what the court believes to be the

child’s best interests.

Child custody comes in two forms, including: legal and physical custody


Types of Child Custody

Physical CustodyDetermines where the

children will reside.

• Sole Physical Custody: Children live with one parent and may visit the other parent

• Joint Physical Custody: Children live with both parents

Legal CustodyDetermines which parent willmake decisions concerning

thechildren’s health, safety,education, and welfare.

• Sole Legal Custody: One parent makes decisions alone

• Joint Legal Custody: Both parents should cooperate with making decisions, but either parent has the power to make decisions alone


Visitation

When the parent who does not have physical custody spends time with the

children.

There are three types of visitation, including:

Unsupervised VisitationSupervised Visitation

No Visitation


Types of Visitation

Unsupervised Visitation:

The parent who does not have the children more than

½ the time is entitled to

unsupervised visitation with the

children.

Supervised Visitation:

Used when the children’s safety and

well-being require that visits with the

parent be supervised by the other parent, other

adult, or a professional agency.

No Visitation:

Used when it is decided by the

court that contact with the parent

would be physically or emotionally harmful to the

children.


Good Cause Report

If a domestic violence survivor needs to conceal or withhold their children from the abusive parent when

fleeing the relationship, they must file a “Good Cause Report” with the District Attorney’s Office

Child Abduction Unit within 10 days.

This is not a custody order, but rather a temporary solution that must be followed with child custody

proceedings. The intent is to protect domestic violence victims from being charged with child abduction when fleeing abusive relationships.


Child Support

Money paid by a parent to help support a child or children. Child support orders can

be obtained either through the local Department of Child Support Services or

by petitioning the court.

California has a specified formula for calculating child support payments.


Restraining Orders


Domestic Violence Protection Orders

• Emergency Protection Orders (EPO)• Temporary Restraining Orders (TRO)• Order After Hearing (OAH) • Criminal Protection Orders (CPO)


Emergency Protective Order (EPO)

An order issued by a judge at the request of a law enforcement officer where there is danger of domestic

violence, child abuse, abduction, or elder abuse.

If law enforcement has been called out to the scene of a disturbance and the officer feels an EPO is necessary,

then the officer will contact the court to speak to a judicial officer.

EPOs are temporary, issued for up to seven calendar days.

Family Code Section 6210-6274Module 9 • Legal Issues • Published 2012 • Slide 34

Emergency Protective Order (EPO)

• Each county has a different process for requesting and obtaining EPOs

• EPOs may include temporary custody of minor children, temporary move-out order, and physical stay away orders.

• EPOs are designed to give victims time to apply for a TRO, but there may be a lapse in protection if EPO expires before a TRO is issued.

• The abuser must be served with the EPO in order for it to be enforceable. Most law enforcement officers will serve the EPO immediately, unless the abuser is at large.


Temporary Restraining Order (TRO)

An order for one person to temporarily stay away from another person, including their home, vehicle, work, and protected household or family members. Can also order no contact

between the two parties, for one party to move out of a shared residence, and the right to

record conversations.

TROs can be valid for up to three weeks and may be made permanent after a hearing.

Family Code Section 6200 ET SEQModule 9 • Legal Issues • Published 2012 • Slide 36

Temporary Restraining Order (TRO)

• Anyone 13 and over can apply for a TRO without parental consent

• Needs to be filed in civil court, not criminal• Respondent must be served with the TRO

before police can enforce the order• Only valid and enforceable until the date

of the hearing


Order After Hearing (OAH)

A “permanent” restraining order issued by the court against the respondent after a

hearing. Provides the same specific restrictions of a TRO and may be ordered

for up to three years. The victim may renew the order when it expires if

necessary.

Family Code Section 6300 ET SEQ


Order After Hearing (OAH)

• If the respondent/defendant does not attend hearing, they must be served with the order before it can be enforced

• The length of the OAH may vary by county from 1 to 5 years


Restraining Order Provisions

Restraining orders may include thefollowing provisions :

• Protection of family or household members• Personal Conduct Orders• Stay Away Orders • Move-Out Order• Possession of Gun or other Firearm and

Ammunition



• Record Unlawful Communications• Animals: Possession and Stay Away

Order• Child Custody and Visitation• Child Support • Property Control• Debt Payment • Property Restraint



• Spousal Support • Lawyer’s Fees and Costs• Payments for Costs and Services• Batterer Intervention Program• Other Orders• Time for Service (Notice)• No Fee to Serve (Notify) Restrained

Person


Firearm Restrictions

Under California law, any person who has a protective order issued against them is prohibited from owning, possessing or

attempting to own or possess a firearm. Restrained parties are also expected to

relinquish firearms in their possession or control. The party can sell the firearm and

produce proof of sale, or relinquish the firearm to local law enforcement.


Criminal Protective Order (CPO)

An order issued by the court, requested by the District Attorney in a criminal case against a defendant. The order usually

requires that the defendant have no contact with the victim and other witness of a crime

—including the victim’s children. A CPO may include a stay away order, no contact

order and no abusive behavior order.

Penal Code Section 136.2


Criminal Protective Order (CPO)

• CPO’s take precedence over any other protective order. – If the restrained party has both a CPO and an OAH filed against them, the

CPO will take precedence for police enforcement. Example: The OAH may allow contact between victim and abuser as long as there is no harassment or violence, but if the CPO is a no-contact order, the abuser must follow the CPO.

• CPOs may include protection of the children, but does not include custody of the children.

• Judges can issue a CPO even if the victim is not present in court, or does not want a protection order.

• The length of protection varies widely and usually lasts as long as the court has jurisdiction over the case, which could include parole or probation time. Module 9 • Legal Issues • Published 2012 • Slide 45

Additional Protective Orders

• Juvenile Court Protective Order–Welfare and Institutions Code Section 213.5, 304, 362.4, 726.5

• Post Conviction Stalking Protective Order–Penal Code Section 646.9 (k)

• Workplace Protective Order–Civil Code of Procedure Section 527.8

• Civil Harassment Protective Order–Code of Civil Procedure Section 527.6

• Elder And Dependent Adult Protective Order–Welfare and Institutions Code Section 15657.03

• Military Protective Order

• Tribal Protective Order–Title 10 of the United States Code Section 2265 (a)


Restraining Order Activity

Let’s try to get our own restraining order.


Enforcing/Renewing Orders

Spend several minutes reviewing thehandouts, then discuss.


Other Legal Issues


Rights of Victims

Review the Rights of Victims listed on the handouts.

Penal Code Sections 679-680

CA Labor Code 230 (b)


DV Response Teams


Holding Batterers Accountable

Possible consequences for battering in the

criminal justice system: • Prison or jail time• Probation/ Parole• Restitution fees• Mandated batterer’s intervention

program


Legal Resources


This project was supported by Grant Number G-1101CAFVPS from the Administration on Children, Youth and Families, Family and Youth Services Bureau, U.S. Department of Health and Human Services (HHS) through the California Emergency Management

Agency (Cal EMA).

The opinions, findings, and conclusions in this publication are those of the author and not necessarily those of HHS nor Cal EMA.

Cal EMA reserves a royalty-free, nonexclusive, and irrevocable license to reproduce,

publish, and use these materials and to authorize others to do so.

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