Module 9: Legal Issues

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).1ObjectivesTo 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 victims rightsModule 9 Legal Issues Published 2012 Slide 22Bell 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.

Module 9 Legal Issues Published 2012 Slide 3Introduction to the Legal System

Module 9 Legal Issues Published 2012 Slide 44Group DiscussionWhat do you know about civil, criminal,and superior courts? Module 9 Legal Issues Published 2012 Slide 5Civil CourtHandles actions filed by an individual against another individual.

A party may bring civil suit if: They are injured by another partys violation of a civil lawThey 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 actionThey wish to characterize the legal nature of one persons 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 6Criminal CourtCriminal 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.

Module 9 Legal Issues Published 2012 Slide 7Superior CourtThe 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. Module 9 Legal Issues Published 2012 Slide 8Possible Actions in Court Civil Court Dissolution/ Divorce

Custody/ Visitation

Child/Spousal Support

Restraining Order

Order to Show Cause

Ex Parte

Criminal CourtComplaint for Felony or Misdemeanor

Criminal Protective Order

Module 9 Legal Issues Published 2012 Slide 9Criminal Laws Related To Domestic Violence1. 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)Module 9 Legal Issues Published 2012 Slide 1010Whos Who in Civil and Criminal CourtsModule 9 Legal Issues Published 2012 Slide 11JudgeAn 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. Module 9 Legal Issues Published 2012 Slide 12Attorney/CounselCivil CourtAttorney/ 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. Module 9 Legal Issues Published 2012 Slide 13Involved PartiesCivil CourtPlaintiff/Petitioner: The persons that files a lawsuit

Defendant/Respondent:The person being sued Criminal CourtDefendant: The person accused of a crime by the StateModule 9 Legal Issues Published 2012 Slide 14MediatorA neutral person who encourages and facilitatesthe resolution of a dispute to reach a mutuallyacceptable agreement.

Example: Courts will use a Mediator in custody agreementsorproperty division in a divorce or dissolutionModule 9 Legal Issues Published 2012 Slide 15Court InterpreterA person with specialized training who is certifiedby 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 courtproceedingsModule 9 Legal Issues Published 2012 Slide 16Victim Witness Assistance AdvocateThere are 59 Victim Witness Assistance Centers one in eachcounty. Victim witness assistance advocates are trained toprovide crisis counseling, orientation to the criminal justicesystem, community referrals, assistance with applying forvictim compensation, and many other services.

Most are housed within the District Attorneys officeonly 5are non-profit organizations. They are considered to be agentsof the DAs office.

These advocates do not have the same level of confidentialitythat domestic violence advocates enjoy. Therefore, anythingshared with them can and will be shared with the district attorney.

Module 9 Legal Issues Published 2012 Slide 17Group DiscussionOther than the people/organizations wehave already discussed, who else might beinvolved in a court case and why?

Module 9 Legal Issues Published 2012 Slide 18Other ParticipantsDomestic Violence AdvocateChild Protective ServicesCASA (Court Appointed Special Advocates)Legal AidFamily Law Facilitators Probation DepartmentLaw EnforcementMedical ProfessionalsModule 9 Legal Issues Published 2012 Slide 1919Understanding Legal ActionsModule 9 Legal Issues Published 2012 Slide 20Legally Ending a RelationshipThere are three ways to legally end arelationship:

DivorceSeparationAnnulment

Module 9 Legal Issues Published 2012 Slide 21Dissolution (Divorce)A marriage or domestic partnership that is endedby 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. Module 9 Legal Issues Published 2012 Slide 2222Legal SeparationA 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. Module 9 Legal Issues Published 2012 Slide 23Annulment/NullityA 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 Module 9 Legal Issues Published 2012 Slide 24Uniform 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, 7730Module 9 Legal Issues Published 2012 Slide 2525Child CustodyThe 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 childs best interests.

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

Module 9 Legal Issues Published 2012 Slide 26Types of Child CustodyPhysical CustodyDetermines where thechildren will reside.

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

Joint Physical Custody: Children live with both parentsLegal CustodyDetermines which parent willmake decisions concerning thechildrens 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

Module 9 Legal Issues Published 2012 Slide 27Visitation When the parent who does not have physical custody spends time with the children.

There are three types of visitation, including:

Unsupervised VisitationSupervised VisitationNo Visitation

Module 9 Legal Issues Published 2012 Slide 2828Types of VisitationUnsupervised Visitation:

The parent who does not have the children more than the time is entitled to unsupervised visitation with the children. Supervised Visitation:

Used when the childrens 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.Module 9 Legal Issues Published 2012 Slide 29Good Cause ReportIf 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 Attorneys 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.Module 9 Legal Issues Published 2012 Slide 30Child SupportMoney 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.

Module 9 Legal Issues Published 2012 Slide 31Restraining OrdersModule 9 Legal Issues Published 2012 Slide 32Domestic Violence Protection OrdersEmergency Protection Orders (EPO)Temporary Restraining Orders (TRO)Order After Hearing (OAH) Criminal Protection Orders (CPO)Module 9 Legal Issues Published 2012 Slide 3333Emergency 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 3434Emergency Protective Order (EPO)Each county has a different process for requesting and obtaining EPOsEPOs 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. Module 9 Legal Issues Published 2012 Slide 35Temporary 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 3636Temporary Restraining Order (TRO)Anyone 13 and over can apply for a TRO without parental consentNeeds to be filed in civil court, not criminalRespondent must be served with the TRO before police can enforce the orderOnly valid and enforceable until the date of the hearing

Module 9 Legal Issues Published 2012 Slide 37

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 SEQModule 9 Legal Issues Published 2012 Slide 3838Order 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 yearsModule 9 Legal Issues Published 2012 Slide 39Restraining Order ProvisionsRestraining orders may include thefollowing provisions :

Protection of family or household membersPersonal Conduct OrdersStay Away Orders Move-Out OrderPossession of Gun or other Firearm and Ammunition

Module 9 Legal Issues Published 2012 Slide 40Restraining Order ProvisionsRecord Unlawful CommunicationsAnimals: Possession and Stay Away OrderChild Custody and VisitationChild Support Property ControlDebt Payment Property RestraintModule 9 Legal Issues Published 2012 Slide 41Restraining Order ProvisionsSpousal Support Lawyers Fees and CostsPayments for Costs and ServicesBatterer Intervention ProgramOther OrdersTime for Service (Notice)No Fee to Serve (Notify) Restrained PersonModule 9 Legal Issues Published 2012 Slide 42Firearm RestrictionsUnder 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.

Module 9 Legal Issues Published 2012 Slide 4343Criminal 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 crimeincluding the victims children. A CPO may include a stay away order, no contact order and no abusive behavior order.

Penal Code Section 136.2Module 9 Legal Issues Published 2012 Slide 4444Criminal Protective Order (CPO)CPOs 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 45Additional Protective Orders Juvenile Court Protective OrderWelfare and Institutions Code Section 213.5, 304, 362.4, 726.5

Post Conviction Stalking Protective OrderPenal Code Section 646.9 (k)

Workplace Protective OrderCivil Code of Procedure Section 527.8

Civil Harassment Protective OrderCode of Civil Procedure Section 527.6

Elder And Dependent Adult Protective OrderWelfare and Institutions Code Section 15657.03

Military Protective Order

Tribal Protective OrderTitle 10 of the United States Code Section 2265 (a)Module 9 Legal Issues Published 2012 Slide 4646Restraining Order ActivityLets try to get our own restraining order. Module 9 Legal Issues Published 2012 Slide 47Enforcing/Renewing OrdersSpend several minutes reviewing thehandouts, then discuss. Module 9 Legal Issues Published 2012 Slide 48Other Legal IssuesModule 9 Legal Issues Published 2012 Slide 4949Rights of VictimsReview the Rights of Victims listed on the handouts. Penal Code Sections 679-680CA Labor Code 230 (b)

Module 9 Legal Issues Published 2012 Slide 5050DV Response TeamsModule 9 Legal Issues Published 2012 Slide 5151Holding Batterers AccountablePossible consequences for battering in thecriminal justice system: Prison or jail timeProbation/ ParoleRestitution feesMandated batterers intervention program

Module 9 Legal Issues Published 2012 Slide 5252Legal ResourcesModule 9 Legal Issues Published 2012 Slide 53This 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.