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Message # 562 Legal rights of battered persons

"Legal Rights of Battered Persons"

Legal Rights of Battered Persons (mp3 file)


Battering is a problem which affects many marriages and relationships in every ethnic, religious, and economic group. You are a battered person if your spouse or someone with whom you cohabit beats you or abuses you physically or emotionally. This message will give you some information about your legal rights as a battered person.

You have the right to stop the battering. No one has the right to beat or abuse another person. Remember, if you are married or cohabiting with someone who beats or otherwise abuses you, you always have the right to leave and move away. You can take your children with you. If you have to leave without your children, you will not lose them. Custody of the children will be decided later by a judge. You are not abandoning your children if you leave without them. If you have to leave without your children and you feel they are in danger, call your county's child protective services office so the children can be removed from the home to safety.

You may take any property or money that belongs to you alone or to you and your partner together. You may take a car that belongs to both of you. You can ask the police to escort you into your home to get your things if you are afraid to go there by yourself. Try to keep all important documents and papers together in a place where you can get them in a hurry to take with you. You will need your driver's license, marriage certificate, any papers showing legal ownership such as your car's pink slip, children's birth records, immunization or shot records, school records, bank books, insurance papers, and your social security card.

If you own or rent your house or apartment yourself, you can ask your partner to leave at any time. It is unlikely, however, that the police will remove your partner from your home if he or she has been living there with your consent. If you and your partner own or rent your home together, you each have an equal right to stay there. Your partner only has to leave if a court orders him or her to do so.

If you are being beaten or threatened, you can call the police to protect you. You can also call the police after a battering incident to ask them to arrest your attacker. It is a felony to willfully inflict upon a spouse, or a person of the opposite sex with whom the attacker cohabits, or a parent of your child, bodily injury that results in even a minor internal or external wound or injury. Whenever you call the police, be sure to explain exactly where you are and what is happening to you.

When the police officers arrive, show them your injuries and any damage to the house. Describe what happened. Give the officers the names of any witnesses. The officers will then decide whether they have enough evidence of a crime to make an arrest. Be sure to ask the police for information about your rights and about resources and facilities in your community to help you.

After an arrest, your attacker will be taken to the police station. Your attacker will probably be out of jail within a couple of hours on bail or on a promise to appear in court later. You should use the time while your attacker is at the police station to find yourself another place to stay or find people to come stay with you .

The police are required to make a report when they respond to your call. Before you sign the report, make sure it is accurate and complete. The police report is your record of what happened to you. You will need it later.

If your injuries require medical treatment go immediately to a doctor or hospital emergency clinic. Request that color photographs be taken of your cuts and bruises. If you do not have friends or relatives to stay with, ask the police for information about shelters for you and your children. Shelters provide confidential havens where you will be assisted in getting the needed legal, financial, and supportive help you and your children will need. Most shelters will give you help for 30 days and will provide assistance to find positive ways to solve the domestic violence you have suffered.

Other people who have been through the same experiences will give you supportive understanding, and you will find that you are not alone. Your batterer may be prosecuted by the District Attorney whether or not you want to prosecute.

If you want your attacker to be prosecuted for hurting you, you should go talk to the District Attorney. You should do this within a few days after the battering incident. After talking to you and reading the police report, the district attorney will decide whether to prosecute your spouse or partner. You can ask the district attorney to explain to you the court procedures and what will be expected of you.

You can also file a civil lawsuit against your attacker to recover money for any losses you suffered as a result of the attack, including medical expenses, loss of income, damage to property and other related expenses you incurred as a result of the attack. If the person who is beating you is on probation or parole, you can ask for help from his or her probation or parole officer, and request that officer to tell the person to leave you alone. Send the officer copies of your police reports and court orders to back up your request.

You have probably heard that you can go to court and get a restraining or protective order which will tell your spouse or partner to leave you alone. There are three types of protective orders. The first type is for a married person who has already begun or wants a legal separation or divorce from his or her spouse. You must file for a restraining order in the divorce or a legal separation action.

The second type of restraining order is called a domestic violence Temporary Restraining Order (TRO), which is a court order directing a specified party to stop committing acts of violence against the victim.

The party filing for the TRO is called the plaintiff, and the alleged abuser is called the defendant. For a plaintiff to file a TRO, the defendant must either be related to the plaintiff, have lived with the plaintiff within the last six months or have a minor child in common with the plaintiff, have a dating or engagement relationship, or be married with no divorce or dissolution pending. Remember, if you have an open divorce case you can still file for a TRO in that case. The defendant must have physically injured the plaintiff or a family member (intentionally or recklessly) or have seriously threatened physical injury to the plaintiff or family. In the case of a threat, the victim must actually believe that the threat is real.

Attorneys are not needed to file a TRO. TROs are available free of charge for all victims of domestic violence. Applications for TROs are available from all victim/witness centers as well as the County Clerk's Office in the Superior Court. Many victim/witness centers hold classes in conjunction with the district attorney's office to instruct applicants on the procedure for filling out TRO. Many courts have programs that offer free legal help by pro-bono attorneys. You should make an effort to find such a program because the forms can be complex.

You must first get an application and declaration for order, which tells the judge about the case and the orders requested. The application should be typed and filled out completely. In some cases, the court may request that an income and expense declaration be filed.

You then submit the application to the County Clerk's Office in the Superior Court. The clerk will explain the procedure for seeing the judge. After the judge signs the TRO, the county clerk will stamp all the papers with the case and file number.

Delivery of the TRO to the defendant (also called service of process) is very important. If not served properly, the TRO may not be enforced.

You must have another person who is over 18 years of age serve the papers on the defendant. You can have the sheriff or the police department serve the TRO, but there may be a fee involved and there may be a delay. In certain circumstances, you may be able to file a waiver of the fee with the county clerk. These papers include a copy of the application, the TRO signed by the judge, and a responsive declaration to order to show cause, a form allowing the defendant to tell his/her side of the story.

After the defendant is served, the person delivering the service must complete and sign the proof of service and file it with the county clerk. The form usually must be filed at least 5 days before the court date. The clerk will file the original proof of service and stamp "endorsed-file" on the copies. The applicant should always keep two copies of the TRO for enforcement purposes; one copy should be carried on his/her person and the other kept in a safe place.

You must serve copies of the TRO to each law enforcement agency that the applicant wants to enforce the order, along with a copy of the proof of service. You can also file gun control forms so that the respondent cannot purchase a firearm. Call (213) 624-3665 for information regarding a domestic violence program that provides free legal services in the Downtown LA and Pasadena Courthouse.

In emergency situations, when courts are closed, an emergency protective order may be obtained without service to the defendant. However, an emergency protective order is usually good only until the fifth day after the order is issued. The application procedure is to ask a police officer to contact a judge who is always available by telephone.

TROs can go into effect immediately upon service to the defendant, and last until a court hearing within 20 days to decide whether or not to make the restraining order more permanent. The judge's order after the hearing may include any or all of the following:

-the defendant is not to contact, molest, strike, attack, threaten, sexually assault, batter, telephone or disturb your household;

-the defendant is to move out, take only personal clothing and effects, and not to return;

-the defendant is to stay away from certain places and people;

-a decision on who has custody of the children and visitation rights, who has temporary possession and use of certain property, and who pays certain bills;

-any other order to insure safety.

After the court hearing, you can get an Order After Hearing (OAH), which has the same function as a TRO, and can last up to three years. The OAH can include such things as child support, restitution (payments by the defendant to the plaintiff for medical expenses, lost wages, and temporary housing needed due to the violence), counseling, attorney fees and court costs.

A defendant who violates a TRO can be arrested. If the police are not present at the time of the violation, you can make a citizen's arrest and detain the defendant until the police arrive. However, it should be pointed out that a citizen's arrest can be very dangerous and should only be executed as a last result.

You can also go to court to ask for a divorce or legal separation, for custody of your children, for support payments, and for a division of any property you own together. Anytime you're thinking of going to court, you should talk with a lawyer first.

If you do not have a lawyer, here is how you can find one. If you do not have money to pay for a lawyer, you can go to your local Legal Aid office for free legal assistance. If you can afford to pay for a lawyer, the bar association in your area has a lawyer's referral service which will refer you to one. The Legal Aid office and the local bar association are listed in your phone book.

If you or your attacker are not U.S. citizens, you should talk to a lawyer who specializes in immigration law. You must be careful not to jeopardize your ability to stay in this country.

This message has given you some information about your legal rights as a battered person. Naturally, the message has been too short to tell you everything you need to know. In addition, every person's situation is a little different. For these reasons, you should talk to a lawyer for more information and advice specific to your problem.

Remember that no one, not even your spouse, has a legal right to hurt you. You can use the law to stop the battering and abuse you have suffered.

This message is based in part on an article by Wilford Thomas Lee in "Victims News and Views," published the Victims of Crime Resource Center, McGeorge School of Law, University of the Pacific, Sacramento, California, Phone 1-800-VICTIMS.

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