Divorce, Child Support, Rape? An Introduction to California Courts

DIVORCE, CHILD SUPPORT,
RAPE, BATTERY AND MORE…
A PRIMER ON NAVIGATING
CALIFORNIA’S COURTS
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.

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 Visitation
Supervised Visitation
No 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.

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 occurs
 The police are contacted
 The police must be contacted for criminal charges to
be filed
 – not a hard and fast rule, but 99% of the time
 Reporting time – extremely important
 A 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 members
 Reasons for recanting
 Threats/Fear
 Getting victims to testify
 I can’t put a victim in jail
 Important 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 Orders
 Stay Away Orders
 Move-Out Order
 Possession of Gun or other Firearm and Ammunition

 Record Unlawful Communications
 Animals: Possession and Stay Away Order
 Child Custody and Visitation
 Child Support
 Property Control
 Debt Payment
 Property Restraint
 Spousal Support

 Lawyer’s Fees and Costs
 Payments for Costs and Services
 Batterer’s Intervention Program
 Other Orders
 Time 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 Order
 Tribal Protective Order
 Title 10 of the United States Code Section 2265(a)

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

CHRISTY HOROWITZ & SANFORD HOROWITZ
ATTORNEYS AT LAW
H O R O W I T Z L A W
1 0 3 2 S A N T A B A R B A R A S T R E E T
S A N T A B A R B A R A , C A 9 3 1 0 1
( 8 0 5 ) 4 5 2 - 7 2 1 4
C H R I S @ H O R O W I T Z F O R L A W . C O M
S A N D Y @ H O R O W I T Z F O R L A W . C O M
W W W . H O R O W I T Z F O R L A W . C O M
HOROWITZ LAW

Divorce, Child Support, Rape? An Introduction to California Courts

Recommended

Recommended

More Related Content

What's hot

What's hot (19)

Similar to Divorce, Child Support, Rape? An Introduction to California Courts

Similar to Divorce, Child Support, Rape? An Introduction to California Courts (20)

More from Sanford Horowitz

More from Sanford Horowitz (8)

Recently uploaded

Recently uploaded (20)

Divorce, Child Support, Rape? An Introduction to California Courts