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Domestic Violence Legal Update

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Domestic Violence Legal Update CSU, School of Social Work January 16, 2009 Emberly C. Cross, J.D., M.S.W. 415/864-1790, emberly_at_roclinic.org Deaths of 3 Children ... – PowerPoint PPT presentation

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Title: Domestic Violence Legal Update


1
Domestic ViolenceLegal Update
  • CSU, School of Social Work
  • January 16, 2009
  • Emberly C. Cross, J.D., M.S.W.
  • 415/864-1790, emberly_at_roclinic.org

2
Deaths of 3 Children Test Maryland Legal
SystemThe Washington Post, Dan Morse
Katherine Shaver, April 6, 2008
  • Last weekend, Marc Castillo drowned the parties
    three children one by one in a bathtub in a
    Baltimore hotel room before trying to kill
    himself.
  • He had previously told his wife that the worst
    thing he could do to her was kill their children.
  • In the custody case, the psychologists
    evaluation noted indications of mood disorder and
    narcissistic personality disorder. But the
    psychologist also noted that Castillo spoke of
    his love and commitment to his children.
  • The judge allowed Castillo to continue
    unsupervised visits.
  • "You have very little time to make a very
    important decision," said Paul McGuckian, a
    retired 16-year judge who had no role in the
    Castillo case. "We literally talk about this
    often at lunch, about domestic violence issues,
    and what do you do? In the vast majority of
    cases, you err on the side of protecting, but you
    also have to protect the rights of the other
    party."

3
Shootings seen as murder-suicide Los Angeles
Times, Francis Vara-Orta, April 30, 2008
  • Steven Pick of Torrance was served with a
    restraining order and ordered to leave his
    familys home Monday. He returned eight hours
    later, fatally shot his 5-year old son, mortally
    wounded his mother-in-law, wounded his wife, and
    then apparently killed himself. The couple also
    have a preschool-age daughter who was home at the
    time of the shootings.
  • A neighbor who had known the family for six
    years said Pick had a rocker vibe about him, but
    he seemed to be a really good dad.

4
Victim Jake flipped out.New Hampshire
Union Leader, Katherine Marchocki, March 4, 2007
  • Six hours after Brenda A. Hewey Barnum won
    custody of her 11-year-old son, the boy's father
    came to her home saying he had clothes for the
    boy. Instead, he fatally shot Barnum in the chest
    when she opened the door.
  • Shortly after Concord father Jacob R. "Jake"
    Smith, 34, shot his way into the ranch-style home
    about 5 p.m., others inside told his son,
    Matthew, to run into the bathroom and lock the
    door, his grandparents said.
  • Smith kicked in the door and stabbed the boy,
    then shot him through the chest, they said.
  • "I just find it hard to believe a father can
    shoot his own child. It's unbelievable," said
    neighbor Fred Reagan.

5
When strains on military families turn deadly
New York Times, Lizette Alvererz and Deborah
Sontag, Feb. 15, 2008
  • On Feb. 20, 2006, Carol Trevino and her
    9-year-old son were startled awake by a series of
    booms. What was that? she asked her son.
  • In seconds, Sgt. Jon Trevino, her estranged
    husband, barged through the door. Mrs. Trevino
    had just enough time to reach for her pepper
    spray before he shot her five times, the last
    time in the head. Then he shot himself.
  • Their son sat in bed watching his life explode,
    bullet by bullet. Few details escaped the boys
    notice. His father used a silver gun and it
    didnt have a wheel on it, like the cowboys
    used, he told the police. He could even name
    the precise time of his mothers death 432
    a.m., as the glowing clock read.
  • Outside in Sgt. Trevinos car were divorce
    papers, evidence of a marriage destabilized by
    multiple deployments to war zones and by his
    increasing instability.
  • Sgt. Trevinos brother-in-law said the domestic
    violence was triggered by the combat trauma. I
    dont have any doubt their marital problems
    placed a burden on him, but I am quite sure that,
    but for the war, he would have taken a different
    approach. When you see people being shot every
    day, death is not a big thing.
  • This is just one of those things that
    unfortunately happens, Sgt Trevino wrote to his
    9-year old son in a suicide note. I love you,
    and I know I let you down.

6
A phone call, then deathChicago Tribune, E.A.
Torriero, March 7, 2007
  • Before Eric Johnson flew his rented Cessna into
    his former mother-in-law's house, killing himself
    and his passenger, his 8-year-old daughter,
    Emily, he told his ex-wife in a final call, "I've
    got her and you're not going to get her.
  • The last cell phone call came Monday morning,
    before the flight ended in an act of seeming
    deadly vengeance against Johnson's ex-wife, whom
    he had bitterly divorced last fall. "Mommy, come
    get me, come get me," Emily could be heard
    screaming in the background.
  • Emilys grandmother told reporters that Johnson
    had been stalking his ex-wife for months after
    the couple separated. Beth Johnson had obtained a
    restraining order last July.

7
WHY IS THERE NO CRIMINAL CASE?
  • And does that mean
  • the victim is lying?

8
Legal Definitions of Domestic Violence
9
DV Crimes (Penal Code)
  • Battery
  • Willful infliction of corporal injury
  • Sexual assault
  • Criminal threats
  • Stalking
  • Violation of restraining order
  • Vandalism
  • Etc.

10
Penal Code 243(e)(1) DV Misdemeanor
  • A battery (any willful and unlawful use of force
    or violence upon the person of another) (Penal
    Code 242)
  • committed against
  • a spouse,
  • a person with whom the defendant is cohabiting,
  • a person who is the parent of the defendant's
    child,
  • former spouse,
  • fiance, or fiancee,
  • or a person with whom the defendant currently
    has, or has previously had, a dating or
    engagement relationship,
  • "Dating relationship" means frequent, intimate
    associations primarily characterized by the
    expectation of affectional or sexual involvement
    independent of financial considerations. (Penal
    Code 243(f)(10))

11
Penal Code 273.5 DV Felony/Misdemeanor
(wobbler)
  • To willfully inflict corporal injury resulting in
    a traumatic condition
  • upon a person who is
  • his or her spouse,
  • former spouse,
  • cohabitant,
  • former cohabitant,
  • or the mother or father of his or her child

12
Penal Code 646.9Stalking
  • Willfully, maliciously, and repeatedly following
    or willfully and maliciously harassing another
    person and making a credible threat with the
    intent to place that person in reasonable fear
    for his or her safety, or the safety of his or
    her immediate family
  • Credible threat
  • A verbal or written threat, including that
    performed through the use of an electronic
    communication device,
  • or a threat implied by a pattern of conduct or a
    combination of verbal, written, or electronically
    communicated statements and conduct,
  • made with the intent to place the person that is
    the target of the threat in reasonable fear for
    his or her safety or the safety of his or her
    family,
  • and made with the apparent ability to carry out
    the threat so as to cause the person who is the
    target of the threat to reasonably fear for his
    or her safety or the safety of his or her family.
  • It is not necessary to prove that the defendant
    had the intent to actually carry out the threat.

13
Penal Code 422Criminal Threats
  • To willfully
  • threaten to commit a crime
  • which will result in death or great bodily injury
    to another person,
  • with the specific intent that the statement is to
    be taken as a threat,
  • even if there is no intent of actually carrying
    it out,
  • which, on its face and under the circumstances in
    which it is made,
  • is so unequivocal, unconditional, immediate, and
    specific as to convey to the person threatened,
  • a gravity of purpose
  • and an immediate prospect of execution of the
    threat,
  • and thereby causes that person
  • reasonably
  • to be in sustained fear
  • for his or her own safety or for her or his
    immediate familys safety.

14
Crawford v. Washington,124 S.Ct. 1354 (2004)
  • Testimonial statements no longer admissible
    unless witness takes the stand and is subject to
    cross-examination
  • But which statements are considered testimonial
    and which are not?

15
Davis v. Washington and Hammon v. Indiana, 126
S.Ct. 2266 (2006)
  • Statements are nontestimonial (so can be
    admissible even if Defendant did not have
    opportunity to cross-examine witness) when they
    are made under circumstances objectively
    indicating the primary purpose of the police
    interrogation is to enable police assistance to
    meet an ongoing emergency
  • Statements are testimonial (so are
    inadmissible) when the circumstances objectively
    indicate there is no ongoing emergency, and the
    primary purpose of the interrogation is to
    establish or prove past events potentially
    relevant to later prosecution

16
Giles v. California (June 25, 2008) Forfeiture by
Wrongdoing
  • U.S. Constitutions 6th Amendment A defendant
    who obtains a witnesss absence by wrongdoing
    forfeits the constitutional right to
    confrontation
  • People v. Dwayne Giles, California Supreme Court,
    March 2007
  • Did defendant forfeit his right to confront his
    ex-girlfriend about the prior incident of
    domestic violence by killing her and thus making
    it impossible for her to be at the murder trial?
  • We conclude that defendant forfeited his right
    to confront his ex-girlfriend when he killed her.

17
Giles v. California (June 25, 2008)U.S. Supreme
Court
  • A defendant who obtains a witnesss absence by
    wrongdoing forfeits the constitutional right to
    confrontation, when the defendant intended to
    prevent the witness from testifying.
  • In a DV case, prior acts of abuse or threats of
    abuse intended to dissuade a victim from
    resorting to outside help would be highly
    relevant to determining the defendants intent in
    causing the victims absence from the case.

18
SB 1356 (Lee) Domestic Violence Contempt
  • DV victim cannot be incarcerated when they are
    held in for contempt for refusal to testify in
    court.
  • Aligns DV victims with sexual assault victims
  • Effective 1/1/09

19
SB 407 (Romero) DV Counselor Victim Privilege
  • Amends Evidence Code 1037 et seq., eff. 1/1/08
  • A victim of domestic violence has a legal
    privilege
  • to refuse to disclose and
  • to prevent any other person from disclosing
  • confidential communications between the victim
    and a domestic violence victim counselor
  • in any
  • criminal,
  • civil,
  • administrative,
  • or other proceeding
  • This bill streamlined definition of DV
    counselor
  • Also prohibits Batterer from being the holder of
    the privilege if the Batterer is the victims
    guardian or conservator

20
When Court Order Isn't Enough Recent domestic
violence deaths reveal system's weaknessesSan
Francisco Chronicle, Yumi Wilson, September 20,
1996
  • Last spring, Maria Teresa Macias, a 36-year old
    mother of three, repeatedly asked Sonoma County
    sheriff's deputies to stop her abusive husband.
    She had gotten a protective order against him
    after accusing him of sexual abuse against her
    and the couple's children. According to her
    diary, Macias called sheriffs deputies 18 times
    to report that Avelino Macias had violated the
    order. He was not arrested or cited.
  • On April 19, Avelino Macias fatally shot his
    wife, then killed himself.

21
Settlement in Restraining Order Death 1
Million OKd in case where deputies allegedly
ignored abuseSan Francisco Chronicle, Bob
Egelko, June 18, 2002
  • On the second day of a federal court trial,
    Sonoma County supervisors today approved a 1
    million settlement to the family of Maria Teresa
    Macias, who was killed by her husband after the
    Sheriff's Department allegedly ignored her
    repeated complaints that he was violating her
    restraining order.

22
When Help Fails Claire Joyce Tempongko was
killed while her ex-boyfriend was in batterer
intervention classes S.F. Chronicle, Rona
Marech, Sunday, August 24, 2003
  • On October 22, 2000, a neighbor chatting on the
    phone heard the children downstairs screaming,
    Mommy, Mommy! Peering worriedly out her
    window, she saw the 10-year old dart down the
    path alongside the basement apartment to the
    front of the building. Help, help, he sobbed.
    My mom, shes been stabbed.
  • After Claire Joyce died, her children were
    separated. The little girl went to live with
    her grandmother, and her brother moved in with
    his biological father, who lives in the suburbs.

23
(No Transcript)
24
16 to life in S.F. slaying by woman's
abuserS.F. Chronicle, Jaxon Van Derbeken,
Saturday, December 13, 2008
  • Likening his violent, remorseless behavior to
    that of an animal, a San Francisco judge imposed
    a sentence of 16 years to life Friday on the man
    who in 2000 committed a murder that revealed
    serious flaws in the city's domestic violence
    prevention efforts.
  • A report issued by the city attorney's office in
    2002 concluded that "the most striking factor is
    how ineffectively the three main criminal justice
    departments (police, district attorney and
    probation departments) appeared to work together
    in this case."
  • Tempongko's family sued the city in 2001,
    charging that police inaction amounted to
    discrimination against domestic violence victims
    and essentially led to her death. The city
    settled the case in 2004 for 500,000.

25
Castle Rock v. Gonzales, 545 U.S. 748 (2005)
  • May 21, 1999, Jessica Gonzales obtains
    restraining order against her husband, Simon
    Gonzales
  • June 22, 1999, approx. 515 p.m., Mr. Gonzales
    abducts the parties three daughters, ages 10, 8,
    and 7
  • Ms. Gonzales calls the police at approximately
  • 730 pm,
  • 830 pm,
  • 1010 pm,
  • and 1215 am on June 23
  • and visits the police station in person at 1240
    am on June 23
  • Despite Colorados mandatory arrest law, the
    police did not go look for Mr. Gonzales and the
    children

26
Castle Rock v. Gonzales
  • June 23, 1999, at about 320 a.m., Mr. Gonzales
    goes to the police station and opens fire with a
    semi-automatic handgun he had purchased earlier
    that evening
  • Police officers shoot him dead and find the
    bodies of the three girls inside his truck

27
Ms. Gonzalezs Due Process Claims against the
police
  • Due Process Clause of the Fourteenth Amendment of
    the U.S. Constitution
  • No State shall deprive any person of life,
    liberty, or property, without due process of
    law.

28
Substantive Due Process Claim
  • Ms. Gonzales argued that she and her daughters
    had a right to police protection against harm
    from her husband
  • Rejected by the courts
  • Due Process Clause does not require the State to
    protect the life, liberty, and property of its
    citizens against private actors

29
Procedural Due Process Claim
  • Ms. Gonzales argued that she possessed an
    entitlement to police enforcement of the terms of
    her restraining order (a property right)
  • Circuit Court on appeal found that Colorados
    mandatory arrest law created a constitutionally
    protected entitlement of which Ms. Gonzales had
    been deprived without due process

30
Supreme Court decision
  • U.S. Supreme Court found no violation of Ms.
    Gonzaless due process rights
  • Mandatory arrest not really mandatory
  • Even if it were mandatory, the RO does not give
    the protected person an entitlement to police
    enforcement
  • Even if it were mandatory and did give the victim
    an entitlement to enforcement, this entitlement
    is not a property interest for purposes of the
    Due Process Clause of the Constitution

31
Further steps in Gonzales case
  • Petition to Inter-American Commission on Human
    Rights, Organization of American States
  • Alleging violations of the human rights of
    Jessica Gonzales by the United States of America
    and the State of Colorado
  • Requesting monetary compensation, adoption by the
    United States and Colorado of necessary measures
    to deter DV, and advisory opinion regarding the
    nature and scope of U.S. obligations under
    international conventions

32
Typical Criminal DV Case
  • Call to 911
  • Law enforcement sent to scene
  • Different priorities for response time
  • Arrest decision
  • Emergency Protective Order requested

33
Emergency Protective Order (Family Code 6240 et
seq.)
  • 5 business days or 7 calendar days
  • Victim must be in immediate present danger,
    based on a recent incident or threat
  • Possible orders
  • No contact
  • Stay away
  • Temporary custody
  • Kick-out
  • Police obtain EPO for victim from on-duty judge

34
Typical Criminal DV Case
  • Arrest
  • Emergency Protective Order requested
  • Charging decision made by Prosecutor
  • Arraignment
  • Plea of Guilty or No Contest ? Sentencing
  • Plea of Not Guilty ? Pretrial hearings set, CPO
    issued
  • Pretrial Negotiations
  • Plea ? Sentencing
  • Trial is set
  • Trial
  • Not Guilty
  • Guilty ? Sentencing
  • Sentencing
  • Jail and/or probation ? CPO as term of probation

35
Criminal Protective Order(Penal Code 136.2)
  • For any victim or witness in a criminal case
  • Routinely given in DV cases
  • Possible orders
  • No contact
  • Stay away (commonly 150 yards)
  • Kick-out

36
AB 1771 (Ma) Domestic violence restraining
orders
  • Allows judge to issue Criminal Protective Order
    based on the underlying nature of the offense
    charged
  • Effective January 1, 2009

37
Criminal Protective Orders Can Include Child as
Protected Party
  • Criminal Protective Orders that protect the minor
    children may or may not allow Family Court to
    order visitation. (Penal Code 136.2(j))
  • Every court must adopt local rules regarding
    communication among courts issuing CPOs and
    custody/visitation orders (Rule of Court 5.500)

38
Typical Criminal DV Case
  • Arrest
  • Emergency Protective Order issued
  • Charging decision made by Prosecutor
  • Arraignment
  • Plea of Guilty or No Contest ? Sentencing
  • Plea of Not Guilty ? Pretrial is set, RO issued
  • Pretrial Negotiations
  • Plea ? Sentencing
  • Trial is set
  • If DA drops case, Criminal Protective Order
    disappears
  • Trial
  • Not Guilty ? Criminal Protective Order disappears
  • Guilty ? Sentencing
  • Sentencing
  • Jail and/or probation ? CPO as term of probation
  • If probation is revoked ? defendant goes to jail,
    and upon release ? Criminal Protective Order
    disappears

39
AB 289 (Spitzer) Protective Orders for DV and
Stalking
  • Amends Penal Codes 273.5, effective 1/1/08
  • Court may issue restraining order for up to 10
    years upon conviction of
  • Penal Code 273.5 (DV wobbler crime)
  • Penal Code 646.9 (stalking)
  • Does not apply to other DV crimes
  • All other Criminal Protective Orders expire when
    criminal case ends (e.g, dismissal, finding of
    not guilty, end of probation)

40
Family Court Interventions
41
Family Court Causes of Action
  • Dissolution/Separation
  • Custody/Visitation
  • Domestic Violence Prevention Act (DVPA)
    restraining order
  • Child Support

42
Family Code 6203 Abuse
  • Physical violence
  • Sexual violence
  • Threats of violence
  • Behavior that has been or could be enjoined
    pursuant to Section 6320 (stalking behavior)
  • molesting, attacking, battering, harassing,
    telephoning, including, but not limited to,
    annoying telephone calls, destroying personal
    property, contacting, either directly or
    indirectly, by mail or otherwise, coming within a
    specified distance of, or disturbing the peace of
    the other party

43
(No Transcript)
44
Power and Control Wheels
  • Domestic Abuse Intervention Project
  • 202 East Superior Street, Duluth MN 55802
  • 218-722-2781
  • For .pdf copies of Power and Control wheels
  • http//www.ncdsv.org/publications_wheel.html

45
Restraining Orders
46
  • Do restraining orders work?

47
CROC study, done by Junior League of San Francisco
48
National Center for State Courts (1994)
49
Holt et al. study, American Journal of
Preventative Medicine (2003)
  • 65 of women who obtained permanent restraining
    orders experienced a substantial and significant
    decrease in risk of most forms of abuse
  • 70 decrease in physical abuse

50
Different Types of Restraining Orders in
California
  • Emergency Protective Order (EPO)
  • Criminal Court Stay Away Order
  • Juvenile Court Restraining Order
  • Domestic Violence Prevention Act (DVPA)
    Restraining Order
  • Civil Harassment Order
  • Elder/Dependent Adult Restraining Order
  • Workplace Harassment Order

51
Order of Precedence
  • Criminal court orders
  • Juvenile court orders
  • Family court orders
  • Except, effective 1/1/06, any terms of an
    Emergency Protective Order that are more
    restrictive than the terms of a pre-existing
    restraining order between the parties take
    precedence (Penal Code 136.2(c)). This is an
    exception that will rarely happen in practice.

52
Domestic Violence Prevention Act RO (Family Code
6200 et seq.)
  • To qualify for DVPA Order
  • Relationship, as defined by Family Code Section
    6211
  • Abuse, as defined by Family Code Section 6203

53
DVPA, contd
  • Relationships that qualify for DVPA Restraining
    Order
  • Married or formerly married
  • Dating or formerly dating
  • Children in common
  • Related by blood, marriage, or adoption (to
    second degree)

54
Abuse under DVPA
  • Physical violence
  • Sexual violence
  • Threats of violence
  • Stalking behavior
  • behavior that has been or could be enjoined
    pursuant to Section 6320
  • molesting, attacking, battering, harassing,
    telephoning, including, but not limited to,
    annoying telephone calls, destroying personal
    property, contacting, either directly or
    indirectly, by mail or otherwise, coming within a
    specified distance of, or disturbing the peace of
    the other party

55
Possible DVPA Orders
  • No contact (6320)
  • Stay away (6320)
  • Child custody, visitation, and support (6323,
    6346, 6341)
  • Spousal support (6341)
  • Kick-out/Not return to (6321, 6340)
  • Record prohibited communication (Penal Code
    633.6)
  • Property issues (6324, 6325)
  • Restitution (6342)
  • Batterer intervention (6343)
  • Attorney fees (6344)
  • Firearm relinquishment (6389)
  • Prohibition against obtaining victims address
    (6322.7) (effective 1/1/06 legislative history
    cites website www.secret-info.com)

56
DVPA Restraining Order, contd
  • DVPA RO can be made for up to 5 years (Family
    Code 6345)
  • Effective 1/1/06 (prior maximum of 3 years)
  • Family Code 6345 allows renewal of restraining
    order for another five years or permanently
  • without a showing of any further abuse since the
    issuance of the original order
  • Burden of proof is preponderance of evidence

57
  • Batterers subject to Family Court
    restraining orders are typically more dangerous
    than those subject to Criminal Protective
    Orders.
  • Keeping the Promise Victim Safety and Batterer
    Accountability (June 2005), Report to the
    California Attorney General from the Task Force
    on Local Criminal Justice Response to Domestic
    Violence (page 4) (emphasis added).

58
AB 2553 (Solorio) Domestic Violence ex parte
orders
  • If court denies ex parte TRO, court must state
    the reasons for the denial.
  • Court must also set a hearing on the request (if
    application is jurisdictionally adequate).
  • Effective January 1, 2009

59
AB 2068 (Aghazarian) Notice to protected person
of service of RO
  • Authorizes local law enforcement agencies to
    notify persons protected by restraining orders
    that the order has been served on the restrained
    person
  • If the protected person has requested to be
    notified
  • Effective January 1, 2009

60
SB 353 (Kuehl) Animals, restraining orders
  • Amends Family Code 6320, effective 1/1/08
  • Family Court may grant exclusive care, custody,
    and control of animal to protected party in
    restraining order
  • Family Court may include animal in stay-away part
    of restraining order

61
Sample of Domestic Violence Laws in Family Court
62
Court must consider DV in custody decisions
  • Best Interest of Child (Family Code 3011)
  • Court must consider any history of abuse by
    person seeking custody, against
  • any child to whom he or she is related or with
    whom he or she has had caretaking relationship
  • the other parent or
  • a parent, current spouse, cohabitant, or person
    with whom the person seeking custody has a dating
    relationship
  • If court gives sole or joint custody to parent
    accused of DV, must state reasons in writing and
    on record.

63
Court must consider DV, contd
  • Legislative Policy (Family Code 3020)
  • 3020(a) Childs health, safety and welfare shall
    be the courts primary concern
  • The Legislature further finds and declares that
    the perpetration of child abuse or domestic
    violence in a household where a child resides is
    detrimental to the child.
  • 3020(b) Policy of frequent and continuing
    contact
  • 3020(c) When the policy of protecting the
    childs health, safety, and welfare is in
    conflict with the policy of frequent and
    continuing contact, the policy of health, safety
    and welfare prevails.

64
Court must consider DV, contd
  • Family Code 3044
  • Upon a finding by the court that a party seeking
    custody has perpetrated DV against the other
    party within the previous five years, there is
    a rebuttable presumption that an award of sole or
    joint physical or legal custody of a child to a
    person who has perpetrated DV is detrimental to
    the best interest of the child, pursuant to
    Family Code 3011.

65
Rebutting factors under 3044
  • Best interest of the child
  • BUT in determining childs best interest, the
    policy of frequent and continuing contact of 3040
    and 3020(b) may not be used to rebut the
    presumption.
  • Successful completion of 52-week BIP
  • Successful completion of alcohol or drug program
  • Successful completion of parenting class
  • Compliance with terms of probation or parole
  • Compliance with restraining orders
  • No commission of any further acts of DV

66
2003 Amendments to 3044
  • SB 265 (Kuehl), in 2003, amended 3044 to clarify
    finding of DV
  • A conviction for a DV crime, whether by guilty
    verdict, guilty plea, or plea of no contest, is a
    finding
  • Party has perpetrated DV under 3044 if the
    court finds that the party has committed acts
    under 6203 (abuse as defined by DVPA)

67
Other Family Codes re DV
  • Custody Rights when Restraining Orders exist
    (3031, 6323)
  • Ascertain whether any ROs are in effect
  • Make sure custody/visitation orders do not
    conflict with restraining order
  • Make custody/visitation orders specific
  • Prevent disclosure of shelter address or other
    confidential locations
  • Consider whether visitation should be supervised
    or suspended if RO is in place

68
Family Codes re DV, contd
  • Visitation Rights when Restraining Orders Exist
    (3100)
  • Consider whether visitation should be supervised,
    suspended, or denied if there is a Restraining
    Order
  • Visitation orders must be specific as to time,
    day, place, and manner of transfer of child
  • Visitation shall be designed to prevent
    disclosure of the location of a DV shelter or
    other confidential location

69
Family Codes re DV, contd
  • Parents absence from home (3046)
  • Court shall not consider a partys absence from
    the family residence as a factor in
    custody/visitation if the party is absent or
    relocated because of Domestic Violence by the
    other party

70
Family Codes re DV, contd
  • Court order for parents to participate in
    counseling (3192)
  • Court may order parties to participate in
    counseling under 3190, but if there is Domestic
    Violence, the Court may order the parties to
    participate in counseling separately and at
    separate times

71
  • Domestic violence is a grievous problem in
    todays world, and its victims often have few
    places to turn. The courts must be sensitive to
    allegations of domestic violence, root out the
    truth in each case, and protect victims when
    possible. Victims should be guided through our
    judicial system, not herded.
  • Monterroso v. Moran, 135 Cal. App. 4th 732 (2006)

72
AB 2960 (La Malfa) Custody orders evidence of
sexual abuse
  • Adds evidence of sexual abuse of a child that is
    recent in origin and part of a continuing pattern
    to the list of acts that indicate the potential
    for immediate harm that can support the entry or
    modification of a child custody order on an ex
    parte basis.
  • Effective January 1, 2009

73
SB 1255 (Harman) Child custody
  • Extends the sunset date on Family Code 3041.5,
    which authorizes judges to order parties in
    custody cases to submit to alcohol and drug
    testing, until January 1, 2013.
  • Effective January 1, 2009

74
AB 2052 (Lieu) Residential tenancies domestic
violence
  • Would allow a victim of domestic violence, sexual
    assault, or stalking to terminate a lease and
    vacate the rental unit
  • if they provide the landlord with written proof
    of the abuse, through
  • restraining order, or
  • report to law enforcement
  • Effective 9/27/08

75
DV Legislation
  • Find current laws, pending legislation, and
    legislative history of current laws at
    www.leginfo.ca.gov
  • Find current California Rules of Court at
    www.courtinfo.ca.gov/rules
  • Find proposed changes to Rules of Court at
  • www.courtinfo.ca.gov/invitationstocomment

76
Family Court ReviewJuly 2008
  • Special Issue on Domestic Violence
  • http//www3.interscience.wiley.com/journal/1184995
    35/home

77
Articles
  • Beyond Politics And Positions A Call For
    Collaboration Between Family Court And Domestic
    Violence Professionals 
  • Peter Salem, Billie Lee Dunford-Jackson
  • Differentiation Among Types Of Intimate Partner
    Violence Research Update And Implications For
    Interventions 
  • Joan B. Kelly, Michael P. Johnson
  • Custody Disputes Involving Allegations Of
    Domestic Violence Toward A Differentiated
    Approach To Parenting Plans 
  • Peter G. Jaffe, Janet R. Johnston, Claire V.
    Crooks, Nicholas Bala

78
Articles, contd
  • Questions About Family Court Domestic Violence
    Screening And Assessment 
  • Loretta Frederick
  • Divorce And The Family Court What Can Be Done
    About Domestic Violence? 
  • Desmond Ellis
  • "It's In Their Culture" Fairness And Cultural
    Considerations In Domestic Violence 
  • Sujata Warrier

79
Mandatory Reporting of Child Abuse in the Context
of Child Witnessing Domestic Violence
80
Child Abuse
  • Child Abuse and Neglect Reporting Act Penal
    Code sections 11164 11174.3
  • Certain professionals are required to report
    known or suspected child abuse.
  • Non-mandated reporters may report, but are not
    required by law to do so.

81
Mandated Reporters
  • Penal Code 11165.7 lists 38 professions as
    mandated reporters
  • teacher, instructional aide, teachers aide or
    assistant employed by any public or private
    school, classified employee of any public school,
    administrative officer or supervisor of child
    welfare and attendance, or a certificated pupil
    personnel employee of any public or private
    school.
  • administrative officer or supervisor of child
    welfare and attendance, or a certificated pupil
    personnel employee of any public or private
    school.
  • administrator of a public or private day camp
    administrator or employee of a public or private
    youth center, youth recreation program, or youth
    organization administrator or employee of a
    public or private organization whose duties
    require direct contact and supervision of
    children.
  • employee of a county office of education or the
    State Department of Education, whose duties bring
    the employee into contact with children on a
    regular basis.
  • licensee, administrator, or employee of a
    licensed community care or child day care
    facility Head Start program teacher
  • licensing worker or licensing evaluator employed
    by a
  • licensing agency as defined in Section 11165.11.
  • public assistance worker.
  • employee of a child care institution, including,
    but not limited to, foster parents, group home
    personnel, and personnel of residential care
    facilities.
  • social worker, probation officer, or parole
    officer.
  • employee of a school district police or security
    department.
  • administrator or presenter of, or a counselor in,
    a child abuse prevention program in any public or
    private school.
  • district attorney investigator, inspector, or
    local child support agency caseworker unless the
    investigator, inspector, or caseworker is working
    with an attorney appointed pursuant to Section
    317 of the Welfare and Institutions Code to
    represent a minor.
  • peace officer

82
Mandated Reporters
  • Penal Code 11165.7 lists 38 professions as
    mandated reporters, continued
  • firefighter, except for volunteer firefighters.
  • physician, surgeon, psychiatrist, psychologist,
    dentist, resident, intern, podiatrist,
    chiropractor, licensed nurse, dental hygienist,
    optometrist, marriage, family and child
    counselor, clinical social worker, or any other
    person who is currently licensed under Division 2
    (commencing with Section 500) of the Business and
    Professions Code.
  • emergency medical technician I or II, paramedic,
    or other person certified pursuant to Division
    2.5 (commencing with Section 1797) of the Health
    and Safety Code.
  • psychological assistant registered pursuant to
    Section 2913 of the Business and Professions
    Code.
  • marriage, family, and child therapist trainee
  • unlicensed marriage, family, and child therapist
    intern
  • state or county public health employee who treats
    a minor for venereal disease or any other
    condition.
  • coroner medical examiner, or any other person
    who performs autopsies.
  • person who develops exposed photographic film
    into negatives, slides, or prints, or who makes
    prints from negatives or slides, for
  • compensation.
  • paid child visitation monitor when the monitoring
    of that visit has been ordered by a court of law.
  • animal control officer or humane society officer
  • clergy member custodian of records of a clergy
    member
  • employee of any police department, county
    sheriff's department, county probation
    department, or county welfare department.
  • employee or volunteer of a Court Appointed
    Special Advocate program
  • custodial officer
  • person providing services to a minor child under
    Section 12300 or 12300.1 of the Welfare and
    Institutions Code.
  • alcohol and drug counselor.

83
Mandatory Reporting
  • Child Abuse (Penal Code 11165.6)
  • Physical injury or death inflicted by other than
    accidental means
  • Sexual abuse
  • Neglect
  • Willful harming or injuring of a child or
    endangering the person or health of the child
  • Unlawful corporal punishment or injury

84
Mandatory Reporting
  • Child Abuse (Penal Code 11165.6)
  • Severe Neglect (section 11165.2(a))
  • Negligent failure of person having care or
    custody of child to protect the child from severe
    malnutrition or medically diagnosed nonorganic
    failure to thrive willfully causing or
    permitting the person or health of a child to be
    placed in a situation such that her or his person
    or health is endangered, including intentional
    failure to provide adequate food, clothing,
    shelter, or medical care

85
Mandatory Reporting
  • Child Abuse (Penal Code 11165.6)
  • General Neglect (section 11165.2(b))
  • Negligent failure of person having care or
    custody of child to provide adequate food,
    clothing, shelter, medical care, or supervision
  • Where no physical injury to the child has
    occurred

86
Mandatory Reporting
  • Child Abuse (Penal Code 11165.6)
  • Willful harming or injuring of a child or
    endangering the person or health of the child
    (section 11165.3)
  • Situation in which any person willfully causes or
    permits any child to suffer, or inflicting
    thereon, unjustifiable physical pain or mental
    suffering, or
  • Situation in which a person having the care or
    custody of a child willfully causes or permits
    the person or health of the child to be placed in
    a situation in which her or his person or health
    is endangered

87
Mandatory Reporting
  • Child Abuse (Penal Code 11165.6)
  • Unlawful Corporal Punishment (section 11165.4)
  • Situation where any person willfully inflicts
    upon any child any cruel or inhuman sic
    corporal punishment or injury resulting in
    traumatic condition.

88
Mandatory Reporting
  • Child Abuse (Penal Code 11165.6)
  • Does not include a mutual affray between minors
  • Does not include injury caused by reasonable and
    necessary force used by a peace officer acting
    within the course and scope of her or his
    employment as a peace officer

89
Permissive Reporting
  • Serious Emotional Damage (Penal Code 11166.05)
  • Any mandated reporter who has knowledge of or who
    reasonably suspects that a child is
  • suffering serious emotional damage or is at a
    substantial risk of suffering serious emotional
    damage,
  • evidenced by states of being or behavior,
    including, but not limited to, severe anxiety,
    depression, withdrawal, or untoward aggressive
    behavior toward self or others,
  • may make a report.

90
Domestic Violence and Mandatory Child Abuse
Reporting
  • The fact that a childs parent has been
    victimized by domestic violence does not in and
    of itself mandate a child abuse report
  • The fact that a child has witnessed domestic
    violence does not in and of itself mandate a
    child abuse report

91
Domestic Violence and Mandatory Child Abuse
Reporting Santa Clara County
  • A report must be made if the domestic violence
    incident caused physical injury to the child or
    placed the child at serious risk of physical
    injury
  • Look at the context of the incident
  • A report must be made if the child suffered
    serious emotional damage or is at substantial
    risk of suffering serious emotional damage.
  • Look at childs behavior and state of being

92
Failure to Protect
  • Accountability and responsibility for violence
  • Sharwline Nicholson v. Williams (New York, 2002)
  • Beaten severely by daughters father suffered
    broken arm, fractured ribs, and a skull injury
  • 9-month old daughter and 5-year old son removed
    for 21 days
  • New Yorks Administration for Childrens Services
    agency charged Ms. Nicholson with neglect for
    engaging in domestic violence

93
Failure to Protect
  • Sharwline Nicholson v. Williams (New York, 2002)
  • The Court declared the citys policy of removing
    children solely because their mothers had been
    victims of domestic violence unconstitutional and
    granted an injunction enjoining the city from
    continuing this practice.

94
Resources
  • The California Child Abuse Neglect Reporting
    Law Issues and Answers for Mandated Reporters,
    California Department of Social Services, Office
    of Child Abuse Prevention, January 2005,
    www.dss.cahwnet.gov/Forms/English/PUB132.pdf
  • When to Contact CPS in Domestic Violence Cases A
    Guide for Mandated Reporters, L. Michael Clark,
    Lead Deputy County Counsel, Santa Clara County,
    May 2003, www.cacscc.org/pdfs/dvcriteria.pdf

95
Resources
  • Effective Intervention in Domestic Violence
    Child Maltreatment Cases Guidelines for Policy
    and Practice (The Greenbook), Susan Schechter and
    Jeffrey L. Edleson (1999) available through
    www.ncjfcj.org and www.thegreenbook.info

96
  • A PowerPoint presentation is only a summary of
    the presenters main points.
  • For more information, please contact
  • Emberly C. Cross, J.D., M.S.W. at the
    Cooperative Restraining Order Clinic in San
    Francisco, at 415/864-1790 or
    emberly_at_roclinic.org.
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