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Module 9 Legal Issues

Module 9 Legal Issues.

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Module 9 Legal Issues

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  1. 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).

  2. 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

  3. 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. Module 9 • Legal Issues • Published 2012 • Slide 3

  4. Introduction to the Legal System Module 9 • Legal Issues • Published 2012 • Slide 4

  5. Group Discussion What do you know about civil, criminal, and superior courts? Module 9 • Legal Issues • Published 2012 • Slide 5

  6. 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

  7. 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. Module 9 • Legal Issues • Published 2012 • Slide 7

  8. 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. Module 9 • Legal Issues • Published 2012 • Slide 8

  9. Possible “Actions” in Court Civil Court Criminal Court Complaint for Felony or Misdemeanor Criminal Protective Order Dissolution/ Divorce Custody/ Visitation Child/Spousal Support Restraining Order Order to Show Cause Ex Parte Module 9 • Legal Issues • Published 2012 • Slide 9

  10. 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) Module 9 • Legal Issues • Published 2012 • Slide 10

  11. Who’s Who in Civil and Criminal Courts Module 9 • Legal Issues • Published 2012 • Slide 11

  12. 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. Module 9 • Legal Issues • Published 2012 • Slide 12

  13. Attorney/Counsel Civil Court Criminal Court District 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. 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. Module 9 • Legal Issues • Published 2012 • Slide 13

  14. Involved Parties Civil Court Criminal Court Defendant: The person accused of a crime by the State Plaintiff/Petitioner: The persons that files a lawsuit Defendant/Respondent: The person being sued Module 9 • Legal Issues • Published 2012 • Slide 14

  15. 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 agreements or property division in a divorce or dissolution Module 9 • Legal Issues • Published 2012 • Slide 15

  16. Court Interpreter A person with specialized training who is certified by the State or registered as being able to interpret, orally or in writing, spoken or sign language into the common language of the court. Example: Spanish to English Interpretation of court proceedings Module 9 • Legal Issues • Published 2012 • Slide 16

  17. Victim Witness Assistance Advocate There are 59 Victim Witness Assistance Centers — one in each county. Victim witness assistance advocates are trained to provide crisis counseling, orientation to the criminal justice system, community referrals, assistance with applying for victim compensation, and many other services. Most are housed within the District Attorney’s office—only 5 are non-profit organizations. They are considered to be agents of the DA’s office. These advocates do not have the same level of confidentiality that domestic violence advocates enjoy. Therefore, anything shared with them can and will be shared with the district attorney. Module 9 • Legal Issues • Published 2012 • Slide 17

  18. Group Discussion Other than the people/organizations we have already discussed, who else might be involved in a court case and why? Module 9 • Legal Issues • Published 2012 • Slide 18

  19. Other Participants • Domestic Violence Advocate • Child Protective Services • CASA (Court Appointed Special Advocates) • Legal Aid • Family Law Facilitators • Probation Department • Law Enforcement • Medical Professionals Module 9 • Legal Issues • Published 2012 • Slide 19

  20. Understanding Legal Actions Module 9 • Legal Issues • Published 2012 • Slide 20

  21. Legally Ending a Relationship There are three ways to legally end a relationship: Divorce Separation Annulment Module 9 • Legal Issues • Published 2012 • Slide 21

  22. 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. Module 9 • Legal Issues • Published 2012 • Slide 22

  23. 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. Module 9 • Legal Issues • Published 2012 • Slide 23

  24. 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 Module 9 • Legal Issues • Published 2012 • Slide 24

  25. 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 Module 9 • Legal Issues • Published 2012 • Slide 25

  26. 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 Module 9 • Legal Issues • Published 2012 • Slide 26

  27. Types of Child Custody Physical Custody Legal Custody Determines which parent will make decisions concerning the children’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 Determines 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 Module 9 • Legal Issues • Published 2012 • Slide 27

  28. Visitation When the parent who does not have physical custody spends time with the children. There are three types of visitation, including: Unsupervised Visitation Supervised Visitation No Visitation Module 9 • Legal Issues • Published 2012 • Slide 28

  29. 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. No Visitation: Used when it is decided by the court that contact with the parent would be physically or emotionally harmful to 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. Module 9 • Legal Issues • Published 2012 • Slide 29

  30. 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. Module 9 • Legal Issues • Published 2012 • Slide 30

  31. 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. Module 9 • Legal Issues • Published 2012 • Slide 31

  32. Restraining Orders Module 9 • Legal Issues • Published 2012 • Slide 32

  33. Domestic Violence Protection Orders • Emergency Protection Orders (EPO) • Temporary Restraining Orders (TRO) • Order After Hearing (OAH) • Criminal Protection Orders (CPO) Module 9 • Legal Issues • Published 2012 • Slide 33

  34. 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 6210-6274 Module 9 • Legal Issues • Published 2012 • Slide 34

  35. 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. Module 9 • Legal Issues • Published 2012 • Slide 35

  36. 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 SEQ Module 9 • Legal Issues • Published 2012 • Slide 36

  37. 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 Module 9 • Legal Issues • Published 2012 • Slide 37

  38. 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 Module 9 • Legal Issues • Published 2012 • Slide 38

  39. 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 Module 9 • Legal Issues • Published 2012 • Slide 39

  40. Restraining Order Provisions Restraining orders may include the following provisions : • Protection of family or household members • Personal Conduct Orders • Stay Away Orders • Move-Out Order • Possession of Gun or other Firearm and Ammunition Module 9 • Legal Issues • Published 2012 • Slide 40

  41. Restraining Order Provisions • Record Unlawful Communications • Animals: Possession and Stay Away Order • Child Custody and Visitation • Child Support • Property Control • Debt Payment • Property Restraint Module 9 • Legal Issues • Published 2012 • Slide 41

  42. Restraining Order Provisions • 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 Module 9 • Legal Issues • Published 2012 • Slide 42

  43. 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. Module 9 • Legal Issues • Published 2012 • Slide 43

  44. 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 Module 9 • Legal Issues • Published 2012 • Slide 44

  45. 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

  46. 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) Module 9 • Legal Issues • Published 2012 • Slide 46

  47. Restraining Order Activity Let’s try to get our own restraining order. Module 9 • Legal Issues • Published 2012 • Slide 47

  48. Enforcing/Renewing Orders Spend several minutes reviewing the handouts, then discuss. Module 9 • Legal Issues • Published 2012 • Slide 48

  49. Other Legal Issues Module 9 • Legal Issues • Published 2012 • Slide 49

  50. Rights of Victims Review the Rights of Victims listed on the handouts. Penal Code Sections 679-680 CA Labor Code 230 (b) Module 9 • Legal Issues • Published 2012 • Slide 50

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