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San Bernardino Domestic Violence Attorney

July 18, 2020

California Domestic Violence Statutes

According to the Domestic Violence Prevention Act (California Family Code § 6200 et seq.), domestic violence charges cover a broad range of abuse.  These encompass child endangerment and spousal abuse. Any threatening or violent action, the fact that the alleged perpetrator did not mean to harm or compromise the safety and security of the victim notwithstanding, may be grounds for prosecution pursuant to the California Domestic Violence laws.

An Overview of Domestic Violence

The term “domestic violence” can be defined as abuse by one partner against the other in a marriage or other type of intimate relationship. 

A report from the California Partnership to End Domestic Violence explains:

  • Roughly 40 percent of women in California will experience domestic violence at some point in their lifetime,
  • Women from age 18 to age 24 are significantly more likely to be victims of domestic violence than women in other age groups,
  • Among this demographic, 75 percent had children under the age of 18 in the home at the time of the abuse,
  • In the Golden State, about 40 percent of the calls relating to domestic violence involved the use of a weapon, and
  • Domestic violence call centers in California State answer around 38 calls per hour

Some types of acts of domestic violence abuse include:

  • Annoying Phone Calls
  • Intimidation
  • Threats
  • Stalking (for example, following the victim to and from work and threatening the victim)
  • Physical Assault or abuse (including hitting, slapping, pushing, shoving or kicking)
  • Verbal, social, and sexual abuse.

Domestic Violence in the Context of Your divorce

Even while California is a no-fault state with regards to divorce, there are several circumstances under which fault might be a factor, particularly a conviction on a domestic violence charge. In the state of California, in the event that a spouse gets convicted on a domestic violence charge against the other spouse during the five year period prior to the divorce, the presumption is that the spouse who was convicted is not entitled to any spousal support. Keep in mind, this presumption is “rebuttable”.  It is not a reflexive presumption.  What this means is that the convicted spouse is given an opportunity to present evidence to “rebut” the presumption against him or her. If domestic abuse was perpetrated from both sides, then this could be taken into consideration by the judge, and spousal support could potentially be awarded to the convicted spouse.

Domestic Violence and the Division of Marital Property

Domestic abuse could also have an effect on the division of community property during your divorce proceeding. There are examples in which a conviction on a charge of domestic violence could be taken into account during the process of property division.  This is particularly true when the court has cause to believe the domestic violence was part of the reason for the deterioration of the marriage. A judge might also find that domestic violence against one spouse could have had a devastating economic impact on that spouse.  This could have occurred by way of unexpected medical bills, or a reduced ability to seek or sustain employment. In plain English, if the abuse in some way inflicted an unreasonable depletion of marital assets, then the one who was the victim of the domestic violence could be given more of the marital assets in the divorce.  This can supersede the fact that California is a community property state.

Making the Choice to divorce Can Trigger Violence

divorce can be the outcome of violence in the home.  On top of this fact, there are some situations in which the choice to divorce can actually be the triggering act for domestic abuse to take place. Very frequently, the peril of violence in an abusive relationship is at its apex when the abused individual makes their choice to get out. What this can mean is that when divorce comes into the picture, the abuser might go harder with his or her violent behavior. Therefore, the victim needs to be made aware that there are special protections available to them under California family legislation.

Does There Have to Be a Criminal Case to Substantiate My Claims of Domestic Violence in the Family Court?

Although protections that were recently added are also being phased into family law situations to uphold the rights of people who are victims of domestic abuse, it can still be a perilous act, for women in particular, to speak out about domestic violence in family court without documentation from a criminal case to substantiate their claim. In too many situations, when a victim of domestic violence voices his or her claims in a family court proceeding, whether it is in an attempt to get an order of protection or in connection to child custody and visitation in a divorce, the door has, regrettably, been flung open for the perpetrator to mount “counterattacks”, in a sense. The simple fact is that the family court was not equipped to handle claims of domestic violence, and in the event that the victim is not properly prepared, then bringing up the issue in court can give rise to significant vulnerability.

Therefore, in answer to this question, although a criminal matter is not a mandatory precursor in family court for a victim to speak up about the violence that they have suffered in their marriage, having documentation definitely helps. A criminal case sets the significant power of the state of California firmly against an accused abuser.  In that respect, the family court is a venue that is designed to allow two private individuals to deal with their personal differences. The state, in this context, can’t be much further than a referee between the two. Even though both of the spouses are probably going to have their own attorney in a family court matter, to some extent they are on their own in the making or defending of allegations of domestic violence. In other words, the accusations presented by a victim of domestic abuse in a family court proceeding, are, to put things into perspective, just one person’s presentation of the facts from his or her own perspective. From the minute those accusations are brought forth, the alleged perpetrator is highly likely to clap back with accusations of his or her own.

Deciding to Leave the Abuser

As we mentioned, there are several protections that are available for those who are living with domestic abuse and wind up in family court. If you find yourself in a violent relationship, you will have a number of issues to think about once you decide to file for a divorce, or when you opt to separate from your spouse.  This is particularly the case if there are children involved. In order to make the smoothest transition, keep extremely careful notes of every incident of abuse that takes place before the actual split. Your records would become an invaluable resource at the point when you stand before a judge in family court and ask that you and your children be protected.

If it is at all possible, work on some plans before you actually file a divorce request.  In actuality, it could be extremely handy to have some money saved away, and to have lined up a safe place to go—preferably a place where your abuser would not immediately come looking for you. Heading to a best friend’s home or the home of a close relative can result in even more violence from an abuser.

If you are in a predicament where you have to get out quickly, it is imperative that you ask for an emergency protective order right away.  The order would grant you custody of your children, and it would require that your spouse stay away from you. If you neglect this step, you would open yourself up to a kidnapping accusation. This emergency custody order would only be temporary, so you will have to think ahead about long-range plans with regards to the custody of your children.  A judge will form a custody decision by the standard of the “best interests of the children”.  Therefore, you have got to make certain that everything is documented, and every requirement is satisfied.

How Family Court Rulings on Domestic Violence Impact Child Custody Decisions

If the judge presiding over your family court matter finds there is, in fact,evidence of domestic violence, this finding would probably have a major impact on child custody for years to follow. In general, in the event that the court finds that a parent who is seeking custody of a child has perpetrated domestic abuse against the other parent or the child, the knee jerk presumption is that the alleged abuser should not receive sole or even joint legal or physical custody of the child or children. California Family Code 3044 spells out what is meant by the term “perpetrating domestic violence.” It dictates that the person needs to have intentionally or recklessly inflicted or attempted to inflict bodily injury, or must have given the other person enough reason to believe that he or she was in danger of bodily injury.

The court is not allowed to make findings of domestic abuse on the basis of the recommendation of any Family Court Services staff or a child custody evaluator only.  Instead, it has to review any “relevant, admissible evidence,” that is submitted by both parties. A person who the court believes committed an act or acts of domestic abuse may still be qualified to be awarded some form of custody if that person can demonstrate that they have:

  1. Finished a treatment program which met the criteria prescribed by the California penal code;
  2. Obeyed with all terms of probation or parole;
  3. Did a parenting class or workshop;
  4. Finished a drug or alcohol program, where applicable;
  5. Obeyed with any issued orders of protection, and
  6. If it is decided that it is in the best interests of the children for the parent to be given some level of custody.

Visitation Time Decisions

You may see it as bizarre that visitation is even being considered for your abuser, however keep in mind that so long as he or she has not harmed the children, it is likely visitation rights will be granted. Depending upon your circumstances, you may want to request supervised visitation and to arrange for a safe drop off and pick up site. It could be that you believe that it is highly unlikely that your children’s other parent will ever hurt them, whether it be physically or emotionally.  If so, then despite how you may feel about your abuser, try to bear in mind that children generally need both parents, regardless of how tough it may be for you. 

Temporary Order of Protection

Getting a temporary restraining order (order of protection) against a spouse who is abusive can be an extremely intimidating situation for some. A temporary order can serve the purpose of making an abusive spouse stay away from you and your children, at least for a period of time.  In the majority of cases, a restraining order applies to your:

  1. Vehicle,
  2. Home
  3. Workplace,
  4. Your kids’ school, or whatever childcare facility your children are cared for in.

In the event that your spouse breaches the terms of the restraining order, you are supposed to notify the police.  The police can remind them of the requirements or arrest him or her. When you fill in the restraining order documents, you will be required to discuss in detail your reasons for asking for the order. It is crucial that you be as thorough as possible in your explanation.

In a few circumstances, as soon as a temporary order of protection is filed—or even if it does not get filed—the domestic abuser may engage in stalking behaviors. The same advice applies regarding thoroughly documenting all occurrences of domestic violence.  You should also keep track of every instance of stalking, because you are entitled to protection from this as well. Any unwanted, repeated contact that makes you feel uncomfortable is likely to be considered stalking. 

Stalkers may:

  • Follow you;
  • Call you over and over, even after you have made it clear that you do not want to talk;
  • Text or e-mail you when you have asked him or her to stop;
  • Randomly show up where you are without any reason;
  • Gather information on you;
  • Spread facetious rumors about you;
  • Post personal details about you, or
  • Otherwise refuse to leave you in peace.

Don’t ever downplay your concerns about a person who is stalking you. For your well-being, this is critical.  It is also important for your looming family court case that you notify the police to report any stalking behaviors.

Talk to a San Bernardino Domestic Violence Attorney Today

If you are living with domestic abuse, or conversely, if you are facing false accusations of domestic violence, it is very important that you inform your San Bernardino family law attorney every relevant detail. This will make it easier for your attorney to fully represent you.  He or she, armed with your full disclosure, can mount a strong case on your behalf which takes these facts into serious consideration.



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