California Domestic Violence Legislation
Pursuant to the Domestic Violence Prevention Act (California Family Code § 6200 et seq.), domestic violence charges encompass a wide range of abuse. These include spousal abuse and child endangerment. A threatening or violent act, the fact that the accused did not intend to harm or compromise the safety and security of the victim notwithstanding, could be grounds for prosecution according to the California Domestic Violence laws.
Domestic Violence: An Overview
The term “domestic violence” can be defined as abuse by one partner against the other in a marriage or other type of intimate relationship.
The California Partnership to End Domestic Violence reports that:
Some examples of acts of domestic violence abuse include:
Domestic Violence in the Context of Your divorce
Even though California is a no-fault state with regards to divorce, there are some circumstances under which fault could be a factor, particularly a domestic violence conviction. In California, when a spouse gets convicted of domestic violence against the other spouse during the previous five year period, the presumption is that the convicted spouse is not entitled to an award of spousal support. Bear in mind, this is a “rebuttable” presumption. It is not an automatic presumption. This means that the convicted spouse has the right to present evidence to “rebut” the presumption against him or her. If domestic violence was perpetrated on both sides, then this could be taken into consideration by the judge, and spousal support could possibly be awarded to the convicted spouse.
Domestic Violence and the Division of Property
Domestic violence may also have an impact on the division of community property during your divorce. There are instances in which a conviction for domestic violence could be taken into consideration during the process of property division. This is particularly the case when the court has reason to believe the domestic violence was a factor in the deterioration of the marriage. A judge could also find that domestic abuse against one spouse may have had an adverse economic impact on that spouse. This could have happened by way of increased medical bills, or a decreased ability to seek or maintain employment. In other words, if the domestic violence in some way caused an unreasonable depletion of marital assets, then the spouse who was the victim of the domestic violence might be awarded more of the marital assets. This can override the fact that California is a community property state.
Deciding to divorce Can Trigger Violence
divorce can take place because of domestic violence. Additionally, in some situations, divorce can actually be a triggering event for domestic violence. Very often, the danger of violence in an abusive relationship is at its highest point when the abused individual makes the decision to get out of the relationship. What this can mean is that when a divorce is on the horizon, the abuser may “step up” his or her violent behavior. It is critical to be aware that there are certain protections available under California family legislation.
Must There Be a Criminal Case to Support My Claims of Domestic Violence in Family Court?
Although recently added protections are being phased into family law situations to uphold the rights of those who are victims of domestic violence, it can still be a risky move, for women in particular, to bring forth their claims of domestic violence in family court with no criminal case documentation to back them up. In way too many situations, when a victim of domestic violence expresses his or her claims in family court, whether it is in an attempt to seek an order of protection or in relation to custody and visitation in a divorce, the door has, regrettably, been opened for the perpetrator to inflict “counterattacks”, in a manner of speaking. The fact is that the family court was simply not designed to handle claims of domestic violence, and in the event that the victim is unprepared, then raising the issue in court can create significant vulnerability.
In answer to the question, although a criminal case is not a mandatory precursor in family court for a victim to raise claims of domestic violence, it definitely helps. A criminal case positions the significant power of the state of California against an accused perpetrator. In that context, the family court arena is a venue which allows two private individuals to reason out their personal differences. The state, in this context, can’t be much more than a referee between the two. Even though both spouses are likely to have their own attorney in a family court matter, to some extent they are on their own as far as making or defending allegations of domestic abuse. In short, the accusations made by a victim of domestic abuse in a family court proceeding, are, for all intents and purposes, simply one person’s presentation of the facts from his or her own perspective. From the moment those accusations are brought out, the alleged abuser is highly likely to fight back with accusations of his or her own.
Deciding to Leave Your Abuser
As mentioned above, there are certain protections that are available for people who are living with domestic violence and ended up in family court. If you find yourself in a domestic violence relationship, you will have various issues to think about once you decide to file for a divorce, or when you separate from your spouse. This is particularly true if there are children involved. In order to make the safest transition, keep extremely careful records of every incident of domestic abuse that takes place prior to the actual split. Your records can be an invaluable resource at the point when you go before a judge in family court and request that you and your children be protected.
If it is at all possible, do some planning before you actually file for divorce. Indeed, it could be extremely helpful to have some money saved up, and to have lined up a safe place to stay—preferably a place where your spouse would not immediately look for you. Heading to a best friend’s home or the home of a close family member can result in further violence from an abuser.
If you are in a situation where you have to get out quickly, it is imperative that you immediately ask for an emergency protective order which will grant you custody of your children, and require that your spouse stay away from you. If you neglect to take this step, you could be accused of kidnapping. This emergency custody order will be temporary, so you will have to make long-range plans with regards to the custody of your children. A judge will make a custody decision on the basis of the best interests of the children. Therefore you need to make certain that everything is documented, and every requirement is met.
How Family Court Findings of Domestic Violence Impact Child Custody Decisions
If the judge in your family court matter finds there is indeed evidence of domestic violence, this finding could have a major impact on child custody for years to follow. In general, when the court finds that a parent who is presently seeking custody of a child has engaged in domestic violence against the other parent or the child, the basic 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 details what is meant by the term “perpetrating domestic violence.” It says that the person must have intentionally or recklessly inflicted or attempted to cause bodily injury, or must have given the other individual reasonable belief that he or she was in danger of bodily injury.
The court is not permitted to make findings of domestic violence on the basis of the recommendation of the Family Court Services staff or a child custody evaluator alone, rather it has to consider any “relevant, admissible evidence,” that is submitted by both parties. A parent who the court believes perpetrated an act or acts of domestic abuse may still be eligible to be awarded some form of custody if the parent can demonstrate that they have:
You might see it as strange that visitation is even on the table for your abuser, however bear in mind that so long as he or she has not abused the children, it is likely visitation rights will be granted. Depending on your circumstances, you might want to ask for supervised visitation and to arrange for a neutral drop off and pick up site. You may believe that there is little likelihood your children’s other parent will ever harm them, whether it be emotionally or physically. If so, then in spite of how you may feel about your abuser, try to keep in mind that children need both parents, regardless of how hard it may be for you.
Temporary Restraining Orders
Getting a temporary restraining order against an abusive spouse can be an extremely intimidating situation for some. A temporary restraining order can serve the purpose of keeping an abusive spouse away from you and your children, at least for a period of time. In most cases, a restraining order applies to your:
In the event that your spouse violates the restraining order, you would notify the police. The police can reiterate the requirements or arrest him or her. When you fill in the restraining order forms, you will be required to explain in detail your reasons for asking for the restraining order. It is critical that you be as thorough as possible in your explanation.
In a few instances, as soon as a temporary restraining order is filed—or even if it does not get filed—the domestic abuser might engage in stalking behaviors. The same as you should thoroughly document all occurrences of domestic violence, you should also keep track of every instance of stalking, because you are entitled to protection from this also. Any unwanted, repeated contact that frightens you is likely to be considered stalking.
Never downplay your concerns about an ex who is stalking you. It is important for your well being. It is also important for your impending family court case that you contact the police to report any stalking behaviors.
Speak with a Los Angeles Domestic Violence Attorney Today
If you are a victim of domestic abuse, or conversely, if you have been falsely accused of domestic violence, it is very important that you tell your California family law attorney every relevant detail. This will give your attorney the ability to fully represent you. He or she, armed with your honest account, can build a case on your behalf which takes these facts into serious consideration.
When most people think of domestic violence, they picture visible bruises and other signs of physical distress. Not all types of domestic violence are so easy to spot, though, and some types don’t leave a physical mark at all. In fact, many types of domestic violence are impossible to see unless you’ve been present – something that abusers count on to keep them safe. If you have been threatened by your partner with a knife, for example, you may feel like you have nowhere to turn. After all, he didn’t actually do anything – he just made a threat. It’s important, though, that you understand the severity of the situation. If you take a moment, you really should begin to think about whether such an incident might qualify under the law as domestic violence.
The first step in answering this question is having a reasonable definition of what constitutes domestic violence. After all, it’s impossible to know if being threatened with a knife falls under that umbrella if you don’t know the definition of the term. Unfortunately, there is not a simple legal definition of the term – the specific terms used to classify domestic violence do vary between jurisdictions, so having a precise answer can be difficult. It is, however, possible to give a very basic definition of what kind of acts can be considered domestic violence in most areas.
Domestic violence is defined simply as a pattern of abuse in a relationship used by one partner to gain or maintain control over another. This abuse does not have to be physical in nature – emotional, psychological, sexual, and even economic abuse do qualify under this banner. Domestic violence can be committed by – or against – spouses, intimate partners, children, family members, and even roommates. While the definition does typically specify that a pattern of abuse must occur, most legal definitions of the crime do not make a mention of such a pattern. All it takes is a single incident for domestic violence to occur.
With what was discussed earlier firmly in mind, it becomes easier to determine whether being threatened with a knife can count as domestic violence. It is now necessary to look at whether the incident falls within the bounds described above – whether it happened in a relationship, and whether it counts as a type of abuse. Fortunately, this is much easier to determine than it would be if the definition of domestic violence was more nebulous. Discussing each factor should make the answer fairly clear.
First, you need to take a look at your relationship. Are you married to the person who threatened you with a knife? If so, there’s a very good chance that this will be considered domestic violence. This also stands if you were in a romantic or sexual relationship with that person, or even if you were roommates. Domestic violence depends on a pre-existing relationship between the two parties and any of those would be more than enough to satisfy that factor. So long as the person who threatened you is someone with whom you have a close relationship with, domestic violence is a real possibility.
The next thing to look at is whether or not being threatened with a knife counts as abuse. While some might tell you that abuse can only occur when one person physically strikes another, this is not true in the vast majority of circumstances. Putting a person in fear of his or her life is more than enough to constitute abuse. Remember, the definition of domestic violence does include psychological and emotional abuse, two other categories under which this incident might fall. The threat, though, is usually more than enough to be considered a real type of physical abuse.
Don’t forget that being threatened with a knife is actually a crime outside of the relationship, too. Threats like this are generally taken very seriously and are dealt with as criminal matters. Even if you think that no one would take a claim of domestic assault seriously, stop to remember that if a stranger had done this to you that he or she would be taken to jail. This is a serious matter that does need to be reported.
So, is it domestic violence if you are threatened with a knife? So long as the person doing the threatening is in a close relationship with you, this should be considered an act of domestic violence. Proving the act can be difficult, though, as is establishing any pattern of behavior. If you do find yourself threatened in any way, it’s important that you both call the police as well as a lawyer who is used to dealing with domestic violence cases. This is a serious criminal matter and it’s very important that you do not treat it lightly.
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