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California Domestic Violence Statutes
According to the Domestic Violence Prevention Act (California Family Code § 6200 et seq.), allegations of domestic violence include a wide variety of illegal acts. These include abuse against children and spousal aggression. Every threatening or abusive behavior, regardless of whether the abuser intended to injure or endanger the safety and security of the victim, may constitute grounds for prosecution under the California Domestic Violence Act.
An Overview of Domestic Violence
The word “domestic violence” can be described as harassment by one spouse against the other in a marriage or any kind of intimate relationship.
A Study on California Alliance to End Domestic Violence explains that:
There are certain types of domestic violence which include:
Domestic Violence in the Context of Your divorce
Even though California is a state of no-fault with respect to divorce, there are many circumstances in which fault may be a factor, particularly a conviction on a domestic violence charge. In the state of California, if a person is convicted of a domestic abuse offense against the other person within the five-year period preceding the divorce, the presumption is that the convicted spouse has no spousal support available.
Note that this presumption is “refutable” and is not a reflectivity assertion. What it means is that it provides an opportunity to present evidence to the accused party to “rebut” the allegation against him or her. The judge must take that into account when sexual violence was committed by both sides, and the convicted spouse should likely be granted spousal support.
Domestic Violence and the Division of Marital Property
In addition, domestic violence during divorce proceedings can affect the division of community property. In some cases, a conviction for domestic violence may be considered during the divorce proceedings. This is particularly true when the court has reason to believe that domestic violence was one of the reasons for the breakdown of the marriage.
A judge might also conclude that a spouse’s domestic violence may have had a negative economic impact on another person. This may be due to unforeseen medical expenses or a reduced willingness to seek or keep a job. Simply put, if the abuse has somehow caused unjust loss of marital property, then the victim of domestic violence would receive a larger share of the divorce assets. This can supersede the fact that California is a state in which community property is the default.
Making the Choice to divorce Can Trigger Violence
divorce can be the product of domestic violence. In addition, there are situations in which the divorce decision may in fact be the trigger for domestic violence. Very often the danger of violence in an abusive relationship is at its peak when the abused person makes their decision to get out. What it can mean is that, as divorce falls into the system, the abuser can go on in his or her violent acts. So the victim needs to be made aware that there are special protections available to them under California family law.
Does there have to be a criminal case in the family court to substantiate my claims of domestic violence?
Although laws newly adopted are increasingly being incorporated into family law circumstances to protect the rights of people who are victims of domestic abuse, it can still be a risky act for women in particular to speak out in family court about domestic violence without evidence from a criminal prosecution to substantiate their claim. In too many instances, when a domestic abuse victim raises his or her claims in a family court case, whether in an effort to get a protective order, or in conjunction with child custody and visits in a divorce, the door has unfortunately been opened to the perpetrator to conduct “counterattacks” in some way. The simple fact is that the family court was not built to address cases of domestic abuse, so if the victim is not adequately prepared, there could be significant resistance to raising the issue in court.
Therefore, while a criminal record is not a sufficient condition for a victim to testify about the violence they have suffered in their marriage in the family court, it definitely helps to provide facts in answer to this issue. A litigation clearly defines the valuable power of the State against an accused abuser. The family court is, in that respect, a venue designed to allow two private individuals to resolve their personal differences. In this scenario, the State may be nothing more than a referee between the two. While both partners are likely to have their own counsel in a family court case, claims of domestic abuse are rather isolated in making or defending. In other words, the claims made by a victim of domestic abuse in a family court case are, to put it into perspective, only one person’s interpretation of the facts from his or her own point of view. By the time charges are put out, the alleged perpetrator is highly likely to clap back with his or her own allegations.
Deciding to Leave the Abuser
As we have said, there are some rights available in the family court for those who deal with domestic violence and end up there. When you are in a abusive relationship, you will have to weigh a variety of things if you decide to apply for a divorce, or if you wish to split from your partner. It is especially so when children are involved. Take highly careful track of each violence occurrence that happens before the actual break, to allow the smoothest transition. Your documents will become an important tool at a time when you’re standing before a family court judge appealing for you and your children’s safety.
If necessary, then focus on some arrangements before finally filing for a divorce. Ideally, getting some money set aside and a safe place to go will be immensely helpful — preferably a place the abuser would not be searching for you immediately. Heading to a best friend’s home or a nearby relative’s home will result in an abuser’s violence being much greater. From a legal point of view, domestic violence is characterized as violence allegedly committed by the defendant against individuals with whom he has near personal relations. Domestic violence laws are designed to give these persons additional protection because of the potential disadvantages that victims face as a result of their relationship with the defendant.
When you find yourself in a situation where you need to get out of a situation quickly, you should immediately request an emergency safety order. The order will give you custody of your children and force your partner to leave. If you do not succeed, you could be charged with kidnapping. The emergency custody order is only temporary, so you will need to think more about how you will care for your children in the long term. A judge must make a custody decision based on the idea of the “best interests of the children”. And you must make sure that everything is recorded and that every requirement is met.
How Family Court Rulings on Domestic Violence Impact Child Custody Decisions
If the presiding judge were to find evidence of domestic violence, this conclusion would undoubtedly have an immense effect on the custody of the children for years to come. In general, when a parent seeking custody of a child is found guilty of domestic violence against the other parent or the child, it is presumed that the alleged abuser will not receive sole custody of the child or children, or even joint custody, legal or physical. California Family Code 3044 describes the meaning of the word “perpetrate domestic violence”. It states that the person must have caused or attempted to cause physical harm, intentionally or recklessly, or must have given the other person sufficient reason to believe that he or she is in danger of physical harm.
The court is not authorized to make claims of domestic violence with the recommendation of family court workers or even a child custody expert. In addition, it must consider any “real and admissible evidence” presented by all parties. A person who has committed an act of domestic violence that the court alleges can still be awarded a form of custody if he or she can prove that he or she:
Visitation Time Decisions
You may find it strange that your abuser is still allowed to visit the children, but keep in mind that as long as he has not harmed them, access is likely to be granted. Depending on the circumstances, you can request supervised entry and arrange for safe drop off and collection. This may be because you think it is incredibly unlikely that your children’s other parent will harm them, either physically or emotionally. If this is the case, try to keep in mind, how you might feel about your abuser considering that children generally need both parents, no matter how difficult it is for you.
Temporary Order of Protection
For others, it may be particularly discouraging to obtain a protection order against an abusive partner. A protection order helps keep the abusive partner away from you and your children, at least for a while. In most cases, the restraining order also applies toyour:
In the event that your partner violates the terms of the restraining order, you will inform the police. Police can notify them of the requirements, or arrest him or her. You will be asked to clarify the reasons for getting the warrant in detail while filling out the restraining order paperwork. It’s crucial to have as detailed description as possible.
The domestic abuser may, in some cases, become involved in harassment practices as soon as a temporary restraining order is issued – or even if he or she is not warned. The same idea applies to the accurate monitoring of all cases of domestic violence. You can also keep track of any case of harassment, as you have the right to defend yourself against it. Any unwanted and persistent interaction that makes you feel uncomfortable is generally considered to be stalking.
Don’t ever play down your anxieties about someone harassing you. It is important to your health. It’s also important that in your pending family court case, you alert the police of any harassment activities.
Talk to a Long Beach Domestic Violence Attorney Today
If you are experiencing domestic violence, or conversely, if you are faced with false allegations of domestic violence, it is very important that you report all possible details to your family law attorney in Long Beach. Your attorney will be more willing to defend you in this matter. Armed with all of your claims, he will build a strong case on your behalf that will require careful consideration of certain details.
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