Transcript Module 8 Courts ppt - Family Resource Council Home Page

module 8
Family Violence Protocol
Integrated Training for Law Enforcement,
Social Services, and Advocates
court, domestic violence
prevention act
Merced County Superior Court
HSA-SAS mod3child.ppt (5/07)
Contents
 Domestic Violence Prevention Act
(DVPA) Restraining Orders
 Criminal and Other Restraining Orders
 Civil Restraining Orders
 Custody Orders
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Domestic Violence
Prevention Act
Restraining
Orders
DVPA Restraining Orders
 Emergency Protective Orders (EPO)
•
•
•
•
Who qualifies
Elements required
Orders available
What information do you need to provide
 “Pendente Lite” Temporary Orders
 Permanent Restraining Orders
 Issues
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•
•
•
•
Duration of Orders
Modifications and Dismissals
Can a restraining order be “waived?”
Conflicting Orders—Priority
In what kind of cases can a court
issue a DVPA restraining order?
According to F.C. 6200, a case can be
opened directly by the filing of a Petition
or Application for a Restraining Order
under the Act. Courts can also make
restraining orders in Dissolution, Nullity,
Separation, and Parentage actions.
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What conduct is covered by the act?
Pursuant to F.C. 6203, abuse within the
meaning of DVPA means:
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• Intentionally or recklessly to cause or
attempt to cause bodily injury;
• Sexual Assault;
• Placing a person in reasonable
apprehension of imminent serious bodily
injury to that person or another person;
• Engaging in any behavior that could be
enjoined under F.C. 6320(1998).
Who is included in the act?
As per F.C. 6211, people who can be
protected or restrained are:
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• Spouse or former spouse;
• Cohabitant or former cohabitant;
• Person who has had or is having a dating
relationship;
• Person who has had a child with the other
party; and,
• Any person related by consanguinity or
affinity within the second degree.
What types of Protective Orders
are available?
 F.C. 6250-6257
EPO
 F.C. 6320-6327
Ex Parte Temporary Restraining Orders
 F.C. 6340-6346
Restraining Orders after Notice and
Hearing
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When is the Restraining Order
effective?
Pursuant to F.C. 6224, the Order is
effective when made, even if no
expiration date appears on it. Further, it
is immediately enforceable by law
enforcement even if not served. “The law
enforcement agency shall advise the
restrained person of the terms of the
order and then shall enforce it.”
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Emergency
Protective
Orders
(EPO)
What are the grounds for
issuance of an EPO?
According to F.C. 6250, the order is an ex parte oral
order which is put in writing on a judicial council form by
a police officer after talking to the judicial officer if there
are reasonable grounds to believe either or both:
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• A person is in immediate and present danger of domestic
violence, based on a recent incident of abuse or threat of
abuse, and/or
• A child is in immediate and present danger of abuse based
on a recent incident of abuse or threat of abuse by the family
or household member, and/or
• A child is in immediate and present danger of being abducted
by a parent or relative, based on a reasonable belief that a
person has the intent based on a recent threat, and/or
• That an elder dependent adult is in immediate and present
danger of abuse based on a recent threat (excluding financial
abuse).
Who makes the EPO?
As per F.C. 6241, a judge, commissioner,
or referee makes oral orders, usually by
phone, to law enforcement, upon contact
by law enforcement. Each county must
have a person assigned to take these
calls 24 hours a day, every day, to make
such orders.
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What can the EPO include?
In accordance with F.C. 6252, the EPO can
include:
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• A protective order;
• An order determining the temporary care and
control of any minor children of the parties;
• An order under 213.5 W&I (Juvenile Court
restraining order protecting children);
• An order determining the temporary care and
control of a minor child in danger of being
abducted; and/or
• An order under 15657.03 W&I (protecting
dependent elder adult).
What are the limits of an EPO?
 The order can be made even when the
abused person has left the residence, if the
person left to avoid further abuse, as per F.C.
6254.
 The order is made without prejudice to either
party, pursuant to F.C. 6255.
 According to F.C. 6256, the order expires at
the earliest of the following times:
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• The close of judicial business on the fifth court day
following the day of its issuance; or
• The seventh calendar day following the day of its
issuance.
What are the duties of law
enforcement regarding the EPO?
In accordance with F.C. 6271, a law
enforcement officer who requests an EPO
shall:
• Serve the order on the restrained person, if
the person can be located;
• Give a copy of the order to the protected
person, parent, or guardian if a minor, and
• File a copy with the court as soon as
possible.
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Emergency
Protective
Order
Page 1
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Emergency
Protective
Order
Page 2
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Ex Parte
Protective
Orders
(TRO)
What are the requirements for
the Petition?
 As indicated in F.C. 6222, no filing fee shall be
charged for either the Petition or the Response; and,
the Court may order the fees waived for the sheriff’s
service on the Respondent.
 According to F.C. 6300, an affidavit must be filed
showing, to the satisfaction of the court, reasonable
proof of a past act or acts of abuse.
 Except as provided in F.C. 6300, an order may not be
granted unless it appears from facts shown in the
affidavit that great or irreparable injury would result to
the applicant before the matter can be heard on
notice, as per F.C. 241.
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What protective orders
can the court make Ex Parte?
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 Pursuant to F.C. 6320, the court can enjoin
contact between the parties.
 The Court can kick one party out of the family
home, regardless of who holds equitable or
legal title or the lease, as per F.C. 6321.
 The Court can enjoin a behavior to effectuate
its orders, in accordance with F.C. 6322.
 Pursuant to F.C. 6322.5, the Court can enjoin
from disclosing the address or other
identifying information of a party, child,
caretaker, or guardian.
(Continued)
What protective orders
can the court make Ex Parte?
 According to F.C. 6323, the Court can make
temporary child custody and visitation orders if the
party seeking the protective order has established a
parent-child relationship with the minors (1997) marriage of the parties is no longer required.
 As indicated in F.C. 6324, the Court can order the
temporary use or control of real or personal property,
such as cars and the payments of any bills coming
due on these items.
 In accordance with F.C. 6325, the Court can restrain a
married party from specified acts in relation to the
marital and separate property of the parties.
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What are the time requirements
for the court to issue an order?
 As per F.C. 6326, the Court must rule on the
application the same day it is received, unless
it is received too late for meaningful review,
then it must be ruled on the next day.
 Pursuant to F.C. 242, the Order to Show
Cause Hearing must be set no later than 20
days, or with good cause no later than 25
days, after the issuance of the temporary
order. The Temporary Restraining Order
(TRO) expires the day of the hearing.
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Temporary
Restraining
Order
(TRO)
Page 1
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Temporary
Restraining
Order
(TRO)
Page 2
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Temporary
Restraining
Order
(TRO)
Page 3
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Temporary
Restraining
Order
(TRO)
Page 4
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Temporary
Restraining
Order
(TRO)
Page 5
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Protective Orders
After Notice and
Hearing (OAH)
What Protective Orders can the Court
make after notice and a hearing?
 According to F.C. 6340, the Court may issue any of
the previously discussed orders.
 The Court may order child support if the parties are
married or there is a presumptive father, pursuant to
F.C. 6341 (1999).
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• As indicated in F.C. 6342, the Court can order restitution to
the victim for loss of earnings, medical, etc.
• Further, as per F.C. 6342, the Court can order the Petitioner
to reimburse the Respondent for losses if the ex parte
application is found to be insufficient to support the order.
• The Court can order the Respondent to pay restitution to any
public or private agency that provided services as a direct
result of the abuse in accordance with F.C. 6342.
• However, pursuant to F.C. 6342, no pain or suffering
damages may be ordered.
(Continued)
What Protective Orders can the Court
make after notice and a hearing?
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 Pursuant to F.C. 6343, either or both parties may be
ordered to attend counseling, including counseling for
substance abuse if the parties intend to or do reside
in the same household. Restrained party can be
ordered to attend batterer’s treatment whether or not
living with the Petitioner. The counseling for the
parties is to be separate if there is a history of
domestic violence.
 In accordance with F.C. 6344, the Court can order
payment of attorney’s fees and costs.
 The Court can order custody and visitation to a party
who has not established a parent-child relationship
but has taken steps to establish it by filing an action
under the Uniform Parentage Act, as indicated in F.C.
6346 (1997).
How long does the order last?
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 Personal conduct, stay-away, and residence
exclusion orders are good for up to five years,
unless modified or terminated. They may be
renewed without a showing of further abuse
for another three years or permanently on the
motion of a party, according to F.C. 6345.
 As per F.C. 6345, all other orders made are
governed by the law relating to those specific
subjects.
 Pursuant to F.C. 6345, failure to state an
expiration date on the face of the form creates
an order with a duration of three years from
the date of issuance.
How are these orders enforced?
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 As indicated in F.C. 6380, the Court is
mandated to directly file Restraining Orders
into the California Law Enforcement
Telecommunication System (CLETS) system
after they have been made. The orders must
be on Judicial Council forms in order to be
directly filed. (1998, 1999)
 The fact that an order is not on the proper
form does not effect enforceability—only the
ability to record in the CLETS system.
 In accordance with F.C. 6380.5, out-of-state
Restraining Orders are also to be registered in
the court and entered into the CLETS system
upon request of the filing party.
(Continued)
How are these orders enforced?
 As per F.C. 6381:
• Restraining Orders are enforced anywhere
in the state;
• An order is not enforceable by law
enforcement unless they have received a
copy of the order, or they have been shown
a copy, or the order is filed in the CLETS
system; and
• Data in the CLETS system is deemed to be
original and self-authenticating.
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(Continued)
How are these orders enforced?
 Pursuant to F.C. 6383:
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• Law enforcement shall serve a TRO or EPO at the
request of the Petitioner, whether or not the
Respondent is arrested, by any law enforcement
present at the scene of domestic violence;
• The Petitioner shall provide the office with an
endorsed copy of the order and proof of service,
which the officer shall complete and transmit to
court; and
• If there is no copy of the order, the officer shall
verify through CLETS that an order exists, and if
not served, immediately notify respondent of its
terms. Verbal notice is sufficient.
(Continued)
How are these orders enforced?
 Pursuant to F.C. 6384:
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• Personal appearance in court by the Respondent
is deemed to be service. No further proof is
required.
• If the Respondent does not appear in court but has
been served with the TRO, service by first class
mail of the Order After Hearing (OAH) is sufficient
(1997); and
• Willful and knowing violation of a protective order is
punishable under P.C. 273.6, by up to one year in
the county jail, or if prior convictions, in State
Prison for up to three years.
Restraining
Order After
Hearing
(OAH)
Page 1
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Restraining
Order After
Hearing
(OAH)
Page 2
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Restraining
Order After
Hearing
(OAH)
Page 3
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Restraining
Order After
Hearing
(OAH)
Page 4
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Restraining
Order After
Hearing
(OAH)
Page 5
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Criminal
and Other
Restraining
Orders
Protective
Order in
Criminal
Proceeding
PC 136.2
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Child
Custody
and
Visitation
Order
Page 1
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Child
Custody
and
Visitation
Order
Page 2
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Reissue
Temporary
Restraining
Order
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Register
Out-of-State
Restraining
Order
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Supervised
Visitation
Order
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Proof
of Service
In-Person
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Proof
of Service
By Mail
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Proof of
Firearms
Turned In
or Sold
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Civil
Restraining
Orders
Order to
Show
Cause and
Temporary
Restraining
Order (TRO)
Page 1
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Order to
Show
Cause and
TRO
Page 2
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Order to
Show
Cause and
TRO
Page 3
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Order to
Show
Cause and
TRO
Page 4
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Custody
Orders
Custody Orders
 Types of Custody Orders
• Temporary
• Permanent
– Permanent “Temporary”
– Permanent Orders
– Amendments
 Problems in Interpreting Orders
 Conflicting Orders - Priority
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Order to
Show
Cause
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Order to
Show
Cause
Application/
Declaration
Page 1
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Order to
Show
Cause
Application/
Declaration
Page 2
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Order to
Show
Cause
Temporary
Orders
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Findings
and Order
After
Hearing
Page 1
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Findings
and Order
After
Hearing
Attachment:
Child Custody
and Visitation
Page 1
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Findings
and Order
After
Hearing
Attachment:
Child Custody
and Visitation
Page 2
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Mediation
Order
Example 1
Page 1
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Mediation
Order
Example 1
Page 2
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Mediation
Order
Example 1
Page 3
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Mediation
Order
Example 1
Page 4
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Mediation
Order
Example 1
Page 5
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Mediation
Temporary
Order
Example 2
Page 1
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Mediation
Temporary
Order
Example 2
Page 2
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Mediation
Order
Amendment
Example 3
Page 1
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Mediation
Order
Amendment
Example 3
Page 2
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Sharing
Information
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Reviewing Reports
 Family Court Evaluators
• In order to review Child Welfare Services files, the
Court Evaluator will fax or mail to Child Welfare
Services the Court order appointing them.
• The Evaluator can review records on-site at Child
Welfare Services, or request copies be mailed or faxed.
 Child Welfare Services
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• In order to review Court Evaluator files, Child Welfare
Services will fax the request to the Family Law clerk’s
office.
• Child Welfare Services can view records at the Court or
can request they be mailed or faxed.
• Child Welfare Services can also review related
confidential information, such as drug test results and
reports from supervised visitation programs.
Communication Between Child
Welfare and Family Court
 Superior Court has issued Standing Orders which
allow Child Welfare Services social workers and
Family Court evaluators to share written reports as
needed.
 Child Welfare Services and the Court have identified
liaison staff to troubleshoot if questions arise.
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 All reports shared are treated as highly confidential
and not shown to anyone other than the specific
individuals authorized to review them.
 If Family Court needs an emergency Child Welfare
Services investigation, Family Court will contact Child
Welfare Services and request an immediate
investigation.
Module 8
Court, Domestic Violence Prevention Act
Presented by:
Merced County Superior Court
Commissioner
Gerald W. Corman
Contact Information:
Merced County
Superior Court
1901 “G” Street
Merced, CA 95340
(209) 725-3820
[email protected]
Family Violence Protocol
#8Integrated Training for Law Enforcement,
Social Services, and Advocates