CRIMINAL RULE 11: SPECIAL CONSIDERATION IN DOMESTIC VIOLENCE CASES
A. CRIMINAL COURT PROCEDURE ON PROTECTIVE ORDERS - COURT COMMUNICATIONS
- B. MODIFICATION OF CRIMINAL PROTECTIVE ORDERS - COURT COMMUNICATIONS
- C. CONSIDERATIONS FOR CHILDREN EXPOSED TO DOMESTIC VIOLENCE
- D. PROPERTY REMOVAL ORDERS
(1) When the Criminal Court issues Criminal Protective Orders protecting victims, the Criminal Court shall inquire of the defendant/restrained person whether there are any children of the relationship between the defendant/restrained person and the victim/protected person, and whether there are any court orders for custody/visitation for those children. If there are children, the Criminal Court shall consider whether peaceful contact with the victim/protected person should be allowed for the purpose of allowing defendant/restrained person to visit the children. The Court shall give the defendant/restrained person the Restrained Person Packet concerning his or her rights to request custody and/or visitation through the Family or Juvenile Court, along with directions to the Self-Help Center. The Criminal Court shall also inquire of the defendant/restrained person whether there are any existing protective/restraining orders involving the defendant/restrained person, the victim/protected person, and/or the children. Subject to available resources, the Court shall examine available databases for existing protective or restraining orders before issuing permanent Criminal Protective Orders.
(2) When the Criminal Court issues Criminal Protective Orders which list the defendant/restrained person’s minor children as protected persons, the Criminal Court shall fax a copy of its Order to the Supervising Judge of the Family Court, unless the Criminal Court is aware that a Juvenile or Probate Court proceeding concerning the family is pending, in which case a copy of the order shall be faxed to the applicable Juvenile or Probate Court.
(1) Any Court responsible for issuing custody or visitation orders involving minor children of a defendant/restrained person subject to a Criminal Protective Order may modify the Criminal Protective Order if all of the following circumstances are satisfied:
(a) Both the defendant/restrained person and the victim/protected person are subject to the jurisdiction of the Family, Juvenile, or Probate Court, and both parties are present before the Court. (b) The defendant/restrained person is on probation (formal or court) for a domestic violence offense in Santa Clara County or is currently charged with a domestic violence related offenses in Santa Clara County and a Criminal Protective Order has issued.
(c) The Family, Juvenile, or Probate Court identifies a Criminal Protective Order issued against the defendant, which is inconsistent with a proposed Family, Juvenile, or Probate Court Order, such that the Family, Juvenile, or Probate Order is/will be more restrictive than the Criminal Protective Order or there is a proposed custody or visitation order which requires recognition in the Criminal Protective Order (Boxes 12 or 13 or both on the Criminal Protective Order form).
(d) The defendant signs an appropriate waiver of rights form or enters a waiver of rights on the record. (e) Both the victim/protected person and the defendant/restrained person agree that the Criminal Protective Order may be modified to a more restrictive order or to add Box 12 or 13 or both to the Criminal Protective Order.
(2) The following Criminal Protective Orders may not be modified in Family, Juvenile, or Probate Court:
The Family, Juvenile, or Probate Court may not modify existing Criminal Protective Orders to be less restrictive. Only if children are not listed as protected persons, a modification of the Criminal Protective Order to check Box 12 or 13 or both shall not be considered less restrictive.
(3) The Family, Juvenile, or Probate Court may on its own motion or at the request of a defendant, protected person or other interested party, calendar a hearing before the Criminal Court on the issue of whether a Criminal Protective Order should be modified. The Family, Juvenile, or Probate Court shall provide the Criminal Court with copies of existing or proposed Orders relating to the matter. Notice of the hearing will be provided to all counsel and parties.
(1) In addition to determining the names and birthdays of any children, the Court will make a determination from competent evidence whether any child was exposed to domestic violence. If any child has been exposed to domestic violence, the Court will distribute to a responsible adult a packet of information entitled "Therapeutic Services for Children Exposed to Domestic Violence," and will assist in making outside services available as early as possible in the criminal proceedings.
(2) Where appropriate, the Court will order restitution to pay for the services, and utilize any other service available to the Court to carry out the Court's intention to connect children with such services.
In cases where the Court allows the Restrained Person to remove hi/her "necessary personal property" from the Protected Person's residence as a one-time exception to the Protective Order, Attachment CR-6072 (Property Removal Orders) shall be completed by and filed by the Court and each party shall be provided with one certified copy of the same.