Modifying Custody Provisions of Restraining Order: Procedure

1. LAAC ConferenceLos Angeles, CATuesday, February 19, 2008 Restraining Order Enforcement: Modifying Custody Firearms ProvisionsPresented by: Tülin D. Açıkalın (tacikalin@baylegal.org) Bay Area Legal Aid – San Mateo County Regional Offices(650) 358-0745 ext 6374

2. Modifying Custody Provisions of Restraining Order: Procedure • File Order to Show Cause to modify (with or without ex parte temporary orders) • Using the following forms: • FL-300 (OSC) • FL-305 (Temp. Orders) • FL-310 (App for Orders & Decl.) • FL-311 (Child Custody & Visitation Attachment)

3. Problem: High Conflict Exchanges • Solution: Modify order to avoid/minimize contact • Pick up/drop off at visitation center, school, daycare, or relative’s house. • Pick up/drop off curbside • Pick up/drop off at crowded public place (i.e., fast food establishment).

4. Problem: Police Claim RO Does Not Prohibit Offending Conduct • Solution: Seek modification to make order more specific to address conduct at issue: • If pick/up drop off=curbside & abuser is engaging in harassment at exchange, modify order to include specific orders that dad stay in car or inside house. • If abuser calls with pretext of discussing children, but ends up harassing mom, modify order to allow only communication in writing.

5. Problem: Abuser’s Habitual Tardiness • Solution: Seek modification that takes abuser out of control • Make mom responsible for pickup/drop off. • Specify how long mom has to wait before visitation is suspended. • Specify how many times he can miss visitation before it is suspended. • Note: if at a fast food location, mom make a purchase to get a date/time stamped receipt to document tardiness.

6. Modifying Custody Provisions of Restraining Order • Be Strategic With Your Modification Requests

7. More Severe Problems • Where problems are more severe, as in the sample pleadings, try more serve modification: • Terminate visitation, • Supervised visitation, • Parenting classes, • Batterer treatment program attendance, • Include in the order that violating the supervised visitation center rules constitutes a violation of the order by Respondent only.

8. Review Hearing For Respondent Only • If you foresee compliance problems, ask for Court to set a compliance review hearing for Respondent only. • Be specific in the order that purpose of hearing is to verify compliance with parenting programs, batterer intervention programs, and firearms provisions or whatever other provisions may be at issue.

9. Recap--Modifying Restraining Orders • Use normal OSC procedure • Modify to make RO more specific to improve enforcement or limit contact between parties • Include provisions that automatically suspend Respondent’s rights upon bad behavior • Use incremental approach rather than sledgehammer

10. Applicable Law • Family Code Section 6389 • 18 U.S.C. Section 922 (g)(8) & (9)

11. Prohibitions • Family Code Section 6389 prohibits owning, possessing, purchasing, or receiving a firearm. • 18 U.S.C. Section 922 (g) prohibits shipping, transporting, possessing or receiving firearms or ammunition.

12. Timing of Firearms Prohibition • California prohibition triggered by order ex parte and after hearing. • Federal prohibition applies: • after a hearing that meets specific procedural requirements ((922(g)(8)); and • after conviction of misdemeanor crime of domestic violence (MCDV)(922(g)(9)).

13. Length & Breadth of Prohibitions • Length of Prohibition • When triggered by a protective order, while the protective order is in effect. • When triggered by MCDV, no end date. • Breadth of Prohibition: • California law prohibits firearms only. • Federal law prohibits firearms and ammunition.

14. Misdemeanor Crime of Domestic Violence (MCDV) • The universe of offenses that could constitute MCDVs includes all misdemeanor offenses that contain either: • the use of physical force, • the attempted use of physical force, or • the threatened use of a deadly weapon as an element, • It is an MCDV so long as the offense is committed against an intimate partner. • As a result, offenses that could constitute MCDVs oftentimes encompass such offenses as generic assault and disorderly conduct.

15. Courts & Law Enforcement Do Not Proactively Enforce State Firearms Prohibitions • Courts rely on the honor system and leave compliance with the law almost entirely on the restrained person. • It is the responsibility of the restrained person to inform the court of the firearms he owns, to surrender the firearms, and provide proof that they firearms have been turned in or sold.

16. Family Code Section 6389 (c)(2) • Respondent must turn over the firearms immediately upon request of any law enforcement officer.

17. Without A Request From Law Enforcement? • Without a request from law enforcement, Respondent has 24 hours from time of service to • 1) sell to a licensed gun dealer or • 2) turn in to law enforcement

18. Advocate With Law Enforcement • Always have law enforcement serve in a case with guns. • Advocate with law enforcement to have officers make it a policy to ask at the time of service. • Increase the chances that law enforcement will ask about firearms by including details about firearms in orders (type, location, etc.) • Remind law enforcement that between 60 and 80 percent of the hostage or barricaded person incidents responded to by law enforcement SWAT teams are domestic violence related.

19. Return Receipt Required • No matter how Respondent turns in firearms, within 48 hours he is required to file a receipt that the firearm was turned in or sold. • Failure to timely file a receipt constitutes a violation of the order.

20. Enforcing Firearms Provisions • Be sure to serve the following with the order: • DV-800 Proof Of Firearms Turned In Or Sold • DV-810 Instructions (modified to include county specific information) • In the Respondent’s language (available in multiple languages on Court website.)

21. San Mateo County Firearms Compliance Unit (DVFCU) • In 2007, San Mateo County Sheriff's Office created the Domestic Violence Firearm Compliance Unit (DVFCU) • The DVFCU has several staff dedicated to enforcing the firearm surrender provisions of California law.

22. San Mateo DVFCU • Family Law Clerks deliver all TROs, ROAHs, and Confidential CLETS Information forms to the Sheriff’s Records Bureau daily for entry into CLETS-ROS. These are then delivered daily to the DVFCU. • DVFCU opens a file for each RO, reviews it for relevant firearms information and searches all available law enforcement systems, conducts a criminal background check, firearms check, CJIS history, and DVROS order history. • If Respondent is on probation, the DVFCU may contact the on duty probation officer to advise them of the circumstances and a probation search may be conducted.

23. Enforcing Firearms Provisions • Since its inception, the DVFCU has enabled the surrender of 63 firearms. • Most of the surrenders have been voluntary with the cooperation of the Respondent. • The DVFCU has also facilitated the surrender of firearms for out of county Respondents.

24. Family Code Section 6389 encourages creation of a system like the one in San Mateo County. Use it to advocate with law enforcement in your area. • If all else fails, be creative! Remember, firearms are community property, so Petitioner can turn them over to law enforcement herself. • And always make sure the victim does serious safety planning when firearms are involved.

25. Enlist The Help Of ATF • ATF has the primary responsibility for enforcing the federal prohibitions on possession of firearms. • Further information about MCDVs can be found at the ATF Web site, www.atf.gov, and questions can be directed to your local ATF Office by calling (800) 800-3855 or to the ATF Firearms Programs Division at (202) 648-7090.

26. The end!