court, domestic violence prevention act

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court, domestic violence prevention act
module 8
Family Violence Protocol Integrated Training for
Law Enforcement, Social Services, and Advocates
Merced County Superior Court
HSA-SAS mod3child.ppt (5/07)
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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
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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
• Duration of Orders
• Modifications and Dismissals
• Can a restraining order be waived?
• Conflicting OrdersPriority

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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
• 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).

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Who is included in the act?

• As per F.C. 6211, people who can be protected or
  restrained are
• 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.

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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)
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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
• 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).

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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
• A protective order
• An order determining the temporary care and
  control of any minor children of the parties
• An order under 213.5 WI (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 WI (protecting dependent
  elder adult).

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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
• 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.

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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 OrderPage 1
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Emergency Protective OrderPage 2
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Ex ParteProtective Orders(TRO)
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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
  sheriffs 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?

• 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)
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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 OrdersAfter Notice and Hearing (OAH)
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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).
• 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)
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What Protective Orders can the Court make after
notice and a hearing?

• 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
  batterers 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 attorneys 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).

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How long does the order last?

• 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.

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How are these orders enforced?

• 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 enforceabilityonly 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)
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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.

(Continued)
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How are these orders enforced?

• Pursuant to F.C. 6383
• 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)
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How are these orders enforced?

• Pursuant to F.C. 6384
• 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.

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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
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Protective Order in Criminal ProceedingPC 136.2
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ChildCustodyandVisitationOrderPage 1
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ChildCustodyandVisitationOrderPage 2
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ReissueTemporaryRestraining Order
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RegisterOut-of-StateRestraining Order
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SupervisedVisitationOrder
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Proofof ServiceIn-Person
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Proofof ServiceBy Mail
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Proof ofFirearms Turned In or Sold
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Civil Restraining Orders
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Order to Show Cause and Temporary Restraining
Order (TRO)Page 1
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Order to Show Cause and TROPage 2
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Order to Show Cause and TROPage 3
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Order to Show Cause and TROPage 4
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Custody Orders
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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/DeclarationPage
1
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Order to Show Cause Application/DeclarationPage
2
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Order to Show Cause Temporary Orders
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Findingsand OrderAfter HearingPage 1
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Findingsand OrderAfter HearingAttachment
Child Custody and VisitationPage 1
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Findingsand OrderAfter HearingAttachment
Child Custody and VisitationPage 2
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MediationOrderExample 1Page 1
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MediationOrderExample 1Page 2
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MediationOrderExample 1Page 3
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MediationOrderExample 1Page 4
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MediationOrderExample 1Page 5
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MediationTemporary OrderExample 2 Page 1
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MediationTemporary OrderExample 2Page 2
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MediationOrderAmendmentExample 3Page 1
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MediationOrderAmendmentExample 3Page 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
• In order to review Court Evaluator files, Child
  Welfare Services will fax the request to the
  Family Law clerks 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.

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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.
• 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.

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Module 8Court, Domestic Violence Prevention Act
Presented by Merced County Superior
Court Commissioner Gerald W. Corman Contact
Information Merced County Superior Court1901
G StreetMerced, CA 95340(209)
725-3820SP30_at_co.merced.ca.us
Family Violence Protocol Integrated Training for
Law Enforcement, Social Services, and Advocates