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Local Criminal Rules of Court
CRIMINAL RULE 10 COURT COMMUNICATION REGARDING
RESTRAINING ORDERS
A. CRIMINAL COURT PROCEDURE
B. MODIFICATION OF CRIMINAL PROTECTIVE ORDERS
A. CRIMINAL COURT PROCEDURE
(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-Service 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.
B. MODIFICATION OF CRIMINAL PROTECTIVE ORDERS
(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:
(Eff. 1/01/06)
(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.
(Eff. 1/01/06)
(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).
(Eff. 1/01/07)
(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.
(Eff. 1/01/07)
(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.
(Eff. 1/01/07)
(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.
(Eff. 1/01/07)
Criminal Rules: Summary - 1 -
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