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DIVORCE, CHILD SUPPORT,
RAPE, BATTERY AND MORE…
A PRIMER ON NAVIGATING
CALIFORNIA’S COURTS
www.HorowitzForLaw.com
www.Horo...
Objectives
To understand the structure of the legal system
in California
To understand important legal terminology
To b...
Introduction to the Legal System
www.HorowitzForLaw.com
Civil Court
Civil Court handles actions filed by an individual
against another individual.
 A party may bring civil suit ...
Civil Court
The goal of civil court is to provide relief to the party
bringing the actions.
The aim is not to punish the o...
Criminal Court
 Criminal cases are NOT actions taken by the victim against
the perpetrator.
 Rather, the criminal court ...
Superior Court
 The Superior Court of California has trial jurisdiction
over all criminal and civil cases.
 There are 58...
Possible “Actions” in Civil vs. Criminal Court
Civil
 Dissolution/ Divorce
 Custody/ Visitation
 Child/Spousal Support
...
Criminal Laws Related To Domestic Violence
1. Battery to a current/former spouse/dating partner (P.C. § 243(e))
2. Battery...
Who Are Some Of The People Involved In Civil
and Criminal Cases?
www.HorowitzForLaw.com
Judge
 A judge is an elected or appointed public official with
authority to hear and decide cases in both civil and
crimi...
Different Types of Attorneys
Civil Court
Attorney/ Counsel:
 A lawyer who is qualified to
represent clients in court and
...
Involved Parties
Civil Court
Plaintiff/Petitioner:
 The persons that files a
lawsuit
Defendant/Respondent:
 The person b...
Mediator
 A mediator is a neutral person who encourages and
facilitates the resolution of a dispute to reach a
mutually a...
Court Interpreter
 A Court Interpreter is a person with specialized
training who is certified by the State or registered ...
Victim Witness Advocates
 There are 59 Victim Witness Assistance Centers — one in each
county. Victim witness assistance ...
Other Participants
 Domestic Violence Advocate
 Child Protective Services
 CASA (Court Appointed Special Advocates)
 L...
Civil Legal Actions
www.HorowitzForLaw.com
Legally Ending a Relationship
There are three ways to legally end a relationship:
 Divorce
 Separation
 Annulment
www.H...
Divorce
A divorce is a marriage or domestic partnership that
is ended by an order of a judge.
 Prior to dissolution both ...
Legal Separation
 A legal separation is a judicial order in which
spouses or domestic partners live apart from each
other...
Annulment/Nullity
 An legal annulment means that the marriage/partnership was invalid
from its inception, and is only gra...
Uniform Parentage Act (UPA)
 The Uniform Parentage Act (UPA) is used to officially
establish a parent-child relationship ...
Child Custody
 The rights and responsibilities between parents for their children.
 Custody is comprised of where the ch...
Types of Child Custody
Physical Custody
Determines where the children
will reside.
 Sole Physical Custody:
Children live ...
Visitation
 When the parent who does not have physical
custody spends time with the children.
 There are three types of ...
Types of Visitation
Unsupervised
Visitation
The parent who does
not have the children
more than ½ the time is
entitled to ...
Good Cause Report
 If a domestic violence survivor needs to conceal or withhold
their children from the abusive parent wh...
Child Support
 Money paid by a parent to help support a child
or children.
 Child support orders can be obtained either
...
Criminal Legal Actions
www.HorowitzForLaw.com
District Attorney’s Office Makes a Decision to
File a Criminal Case.
 What is the process?
www.HorowitzForLaw.com
Filing Decisions
 A criminal act occurs
 The police are contacted
 The police must be contacted for criminal charges to...
Filing Decisions
 Corroborating evidence is the most important aspect of
any prosecution
 Response time
 Particularly i...
Challenges for Prosecutors
 Potential Jurors – they don’t want to be involved
 Recanting victims / family members
 Reas...
Stages of a Criminal Prosecution
Once a Case is Filed:
Criminal Case Through Various Stages
www.HorowitzForLaw.com
Four Main Stages in Criminal Case
1. Arraignment- charges filed against defendant,
generally he/she enters a “not guilty” ...
Restraining Orders
www.HorowitzForLaw.com
Domestic Violence Protection Orders
Emergency Protective Orders (EPO)
Temporary Restraining Orders (TRO)
Order After He...
Emergency Protective Order (EPO)
 An order issued by a judge at the request of a law
enforcement officer where there is d...
Emergency Protective Order (EPO)
 Each county has a different process for requesting
and obtaining EPOs
 EPOs may includ...
Emergency Protective Order (EPO)
 EPOs are designed to give victims time to apply for a
TRO, but there may be a lapse in ...
Temporary Restraining Order (TRO)
 An order for one person to temporarily stay away
from another person, including their ...
Temporary Restraining Order (TRO)
 Anyone 13 and over can apply for a TRO without
parental consent.
 Needs to be filed i...
Order After Hearing (OAH)
 A “permanent” restraining order issued by the court
against the respondent after a hearing.
 ...
Order After Hearing (OAH)
 If the respondent/defendant does not attend the
hearing, they must be served with the order be...
Restraining Order Provisions
Restraining orders may include the following
provisions:
 Protection of the family or househ...
Restraining Order Provisions
 Record Unlawful Communications
 Animals: Possession and Stay Away Order
 Child Custody an...
Restraining Order Provisions
 Lawyer’s Fees and Costs
 Payments for Costs and Services
 Batterer’s Intervention Program...
Forearms Restrictions Under CA Law
 Firearm Restrictions Under California law,
any person who has a protective order issu...
Criminal Protective Order (CPO)
 Criminal Protective Order (CPO) is an order issued
by the court, requested by the Distri...
Criminal Protective Order (CPO)
 CPO’s take precedence over any other protective
order.
 If the restrained party has bot...
Additional Protective Orders
 Juvenile Court Protective Order
 Welfare and Institutions Code Sections 213.5, 304, 362.4,...
Legal Resources
 Legal Aid Foundation of Santa Barbara County
 301 E. Canon Perdido Street
 (805) 963-6754
 www.lafsbc...
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...
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Divorce, Child Support, Rape? An Introduction to California Courts

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For the inexperienced, court systems are intimidating and difficult to understand. Whether you are involved in a criminal or a civil matter, knowing more about the court system in California is settling and a great confidence-builder. The more you know, the easier it is to understand what is happening and to anticipate what will happen next.

This primer Includes vocabulary, definitions, court titles and roles, and details about specific types of law and cases, including civil law, criminal law, animal abuse, annulment, battery, burglary, child support, custody, dissolution, divorce, ex parte, kidnapping, murder, rape, restraining order, separation, stalking, and vandalism.

Published in: Law
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Divorce, Child Support, Rape? An Introduction to California Courts

  1. 1. DIVORCE, CHILD SUPPORT, RAPE, BATTERY AND MORE… A PRIMER ON NAVIGATING CALIFORNIA’S COURTS www.HorowitzForLaw.com www.HorowitzForLaw.com
  2. 2. 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 www.HorowitzForLaw.com
  3. 3. Introduction to the Legal System www.HorowitzForLaw.com
  4. 4. 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 www.HorowitzForLaw.com
  5. 5. 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. www.HorowitzForLaw.com
  6. 6. 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
  7. 7. 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. www.HorowitzForLaw.com
  8. 8. 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 www.HorowitzForLaw.com
  9. 9. 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)) www.HorowitzForLaw.com
  10. 10. Who Are Some Of The People Involved In Civil and Criminal Cases? www.HorowitzForLaw.com
  11. 11. 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. www.HorowitzForLaw.com
  12. 12. 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. www.HorowitzForLaw.com
  13. 13. 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 www.HorowitzForLaw.com
  14. 14. 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 www.HorowitzForLaw.com
  15. 15. 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 www.HorowitzForLaw.com
  16. 16. 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. www.HorowitzForLaw.com
  17. 17. Other Participants  Domestic Violence Advocate  Child Protective Services  CASA (Court Appointed Special Advocates)  Legal Aid  Family Law Facilitators  Probation Department  Law Enforcement  Medical Professionals www.HorowitzForLaw.com
  18. 18. Civil Legal Actions www.HorowitzForLaw.com
  19. 19. Legally Ending a Relationship There are three ways to legally end a relationship:  Divorce  Separation  Annulment www.HorowitzForLaw.com
  20. 20. 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 www.HorowitzForLaw.com
  21. 21. 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. www.HorowitzForLaw.com
  22. 22. 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. www.HorowitzForLaw.com
  23. 23. 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 www.HorowitzForLaw.com
  24. 24. 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. www.HorowitzForLaw.com
  25. 25. 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 www.HorowitzForLaw.com
  26. 26. 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 www.HorowitzForLaw.com
  27. 27. 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. www.HorowitzForLaw.com
  28. 28. 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
  29. 29. 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. www.HorowitzForLaw.com
  30. 30. Criminal Legal Actions www.HorowitzForLaw.com
  31. 31. District Attorney’s Office Makes a Decision to File a Criminal Case.  What is the process? www.HorowitzForLaw.com
  32. 32. 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. www.HorowitzForLaw.com
  33. 33. 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 www.HorowitzForLaw.com
  34. 34. 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 www.HorowitzForLaw.com
  35. 35. Stages of a Criminal Prosecution Once a Case is Filed: Criminal Case Through Various Stages www.HorowitzForLaw.com
  36. 36. 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 www.HorowitzForLaw.com
  37. 37. Restraining Orders www.HorowitzForLaw.com
  38. 38. Domestic Violence Protection Orders Emergency Protective Orders (EPO) Temporary Restraining Orders (TRO) Order After Hearing (OAH) Criminal Protective Orders (CPO) www.HorowitzForLaw.com
  39. 39. 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 www.HorowitzForLaw.com
  40. 40. Emergency Protective Order (EPO)  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. www.HorowitzForLaw.com
  41. 41. Emergency Protective Order (EPO)  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. www.HorowitzForLaw.com
  42. 42. 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 www.HorowitzForLaw.com
  43. 43. 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. www.HorowitzForLaw.com
  44. 44. 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 www.HorowitzForLaw.com
  45. 45. 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. www.HorowitzForLaw.com
  46. 46. 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 www.HorowitzForLaw.com www.HorowitzForLaw.com
  47. 47. Restraining Order Provisions  Record Unlawful Communications  Animals: Possession and Stay Away Order  Child Custody and Visitation  Child Support  Property Control  Debt Payment  Property Restraint  Spousal Support
  48. 48. Restraining Order Provisions  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 www.HorowitzForLaw.com
  49. 49. 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. www.HorowitzForLaw.com
  50. 50. 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 www.HorowitzForLaw.com
  51. 51. 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. www.HorowitzForLaw.com
  52. 52. 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) www.HorowitzForLaw.com
  53. 53. 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 www.HorowitzForLaw.com
  54. 54. 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

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