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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
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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
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 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.
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).
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.
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
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.”
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).
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.
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 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: • 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.
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.
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)
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.
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.
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)
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 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? • 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? • 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. (Continued)
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)
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.
