divorce, child support, rape? an introduction to california courts

DIVORCE, CHILD SUPPORT, RAPE, BATTERY AND

MORE…

A PRIMER ON NAVIGATINGCALIFORNIA’S COURTS

www.HorowitzForLaw.com


http://www.horowitzforlaw.com/


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



Introduction to the Legal System



Civil Court

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



Civil Court

The goal of civil court is to provide relief to the party bringing the actions.

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.



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 and rehabilitate an individual for violating the law. Violation of criminal law is punishable by imprisonment, as well as other forms of punishment.www.HorowitzForLaw.com


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 Civil vs. Criminal Court

Civil

Dissolution/ Divorce Custody/ Visitation Child/Spousal

Support Restraining Order Order to Show Cause Ex Parte

Criminal

Complaint for Felony or Misdemeanor

Criminal Protective Order



Criminal Laws Related To Domestic Violence

1. Battery to a current/former spouse/dating partner (P.C. § 243(e)) 2. Battery causing injury to current/ former spouse/dating partner (P.C.

§ 273.5) 3. Violation of a restraining order (P.C. § 273.6, P.C. § 166) 4. Stalking (P.C. § 646.9) 5. Threatening or harassing phone calls (P.C. § 653m) 6. Vandalism (P.C. § 594) 7. Terrorist threats (P.C. § 422) 8. Burglary (P.C. § 459) 9. False Imprisonment (P.C. § 236) 10. Kidnapping (P.C. § 207) 11. Mayhem (P.C. § 203) 12. Rape (P.C. § Section 261) 13. Spousal Rape (Penal P.C. § 262) 14. Animal abuse (P.C. § 597) 15. Murder (P.C. § 187) 16. Attempted Murder P.C. § 664/187)17. Assault with a Deadly Weapon (P.C. § 245(a)(1))



Who Are Some Of The People Involved In Civil and Criminal Cases?



Judge

A judge is 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.



Different Types of Attorneys

Civil Court

Attorney/ Counsel: 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 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.



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 mediator is 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



Court Interpreter

A Court Interpreter is 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



Victim Witness Advocates

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.



Other Participants

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



Civil Legal Actions



Legally Ending a Relationship

There are three ways to legally end a relationship:

Divorce

Separation

Annulment



Divorce

A divorce is a marriage or domestic partnership that is ended by an order of a judge.

Prior to dissolution both parties must come to an agreement on:

an asset and debt division; Child custody/visitation arrangements; Child /Spousal Support; Former name restoration; Restraining Orders



Legal Separation

A legal separation is a judicial order in which spouses or domestic partners live apart from each 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

An 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)

The Uniform Parentage Act (UPA) is used to officially establish a parent-child relationship with the father.

Once that is established the court may make orders related to:

Custody Visitation 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 Custody

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

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



Visitation

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

There are three types of visitation:Unsupervised VisitationSupervised VisitationNo 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. www.HorowitzForLaw.com


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.



Criminal Legal Actions



District Attorney’s Office Makes a Decision to File a Criminal Case.

What is the process?



Filing Decisions

A criminal act occursThe police are contactedThe police must be contacted for criminal

charges to be filed – not a hard and fast rule, but 99% of the time

Reporting time – extremely importantA report is taken by an officer.

Witnesses are interviewed, Statements and Physical Evidence is gathered

Reports are submitted to the District Attorney’s Office – DA makes the decision.



Filing Decisions

Corroborating evidence is the most important aspect of any prosecution

Response time

Particularly important in domestic violence cases

He said / she said Motive – divorce, child custody, revenge Recanting Cycle of Violence



Challenges for Prosecutors

Potential Jurors – they don’t want to be involved

Recanting victims / family membersReasons for recantingThreats/FearGetting victims to testifyI can’t put a victim in jailImportant to have well documented case

supported by physical evidence – we can overcome a recanting witness



Stages of a Criminal Prosecution

Once a Case is Filed:

Criminal Case Through Various Stages



Four Main Stages in Criminal Case

1. Arraignment- charges filed against defendant, generally he/she enters a “not guilty” plea at this stage

2. Preliminary Hearing – judge determines whether there is probable cause (some evidence) to believe that the defendant committed a crime

3. Trial – jury determines whether a defendant committed the crime against the victim beyond a reasonable doubt

4. Sentencing- judge hands down sentence, victim has a right to be hearing at all stages, and particularly at sentencing, can provide an impact statement



Restraining Orders



Domestic Violence Protection Orders

Emergency Protective Orders (EPO)

Temporary Restraining Orders (TRO)

Order After Hearing (OAH)Criminal Protective 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 5 court days or 7 calendar days, whatever is sooner - FC Section 6210-6274




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. - FC Section 6200 ET SEQ



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. - FC Section 6300 ET SEQ



Order After Hearing (OAH)

If the respondent/defendant does not attend the 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 the following provisions:

Protection of the family or household members

Personal Conduct OrdersStay Away OrdersMove-Out OrderPossession of Gun or other Firearm and

Ammunitionwww.HorowitzForLaw.com





Record Unlawful CommunicationsAnimals: Possession and Stay Away OrderChild Custody and VisitationChild SupportProperty ControlDebt PaymentProperty RestraintSpousal Support


Lawyer’s Fees and CostsPayments for Costs and ServicesBatterer’s Intervention ProgramOther OrdersTime for Service (Notice)No Fee to Serve (Notify) Restrained Person



Forearms Restrictions Under CA Law

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)

Criminal Protective Order (CPO) is 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 Sections 136.2, 273.5, 646.9



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 the 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.



Additional Protective Orders

Juvenile Court Protective Order Welfare and Institutions Code Sections 213.5, 304, 362.4, 726.5

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

Post Conviction Domestic Violence Protective Order Penal Code Section 273.5(j)

Workplace Protective Order Code of Civil 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 OrderTribal Protective Order

Title 10 of the United States Code Section 2265(a)www.HorowitzForLaw.com


Legal Resources

Legal Aid Foundation of Santa Barbara County

301 E. Canon Perdido Street (805) 963-6754 www.lafsbc.org

Victim Witness of Santa Barbara 1112 Santa Barbara Street (805) 568-2400 www.countyofsb.org/da/index.html


http://www.lafsbc.org/

http://www.countyofsb.org/da/index.html


CHRISTY HOROWITZ & SANFORD HOROWITZATTORNEYS AT LAW

HOROWITZ LAW1032 SANTA BARBARA STREET

SANTA BARBARA, CA 93101(805) 452 -7214

[email protected]@HOROWITZFORLAW.COM

WWW.HOROWITZFORLAW.COM

HOROWITZ LAW

mailto:[email protected]

mailto:[email protected]


divorce, child support, rape? an introduction to california courts

Law

civil court order

criminal court criminal

civil law

goal of civil court

violation of criminal

civil cases

criminal complaint

contempt of court