Orange County Domestic Violence Lawyers
California Domestic Violence Statutes
In the Domestic Violence Prevention Act (California Family Code § 6200 et seq.), a broad range of abuse is covered. Among these are child endangerment and spousal abuse. Any threatening or violent act, regardless of the fact that the alleged perpetrator may not have meant to harm or compromise the safety and security of the victim, may be grounds for prosecution in keeping with the California Domestic Violence laws.
Domestic Violence in Relation to Your Divorce
While California is a no-fault divorce state, there are some circumstances under which fault might be a factor, specifically a conviction on a domestic violence charge. In the state of California, if a spouse gets convicted on a domestic violence charge against the other spouse during the five year period before the divorce, the presumption is that the spouse who was convicted would not be entitled to spousal support. This presumption is “rebuttable”. The convicted spouse is given an opportunity to bring evidence to “rebut” the presumption against him or her. If domestic abuse was perpetrated by both people, this could be taken into consideration by the judge, and spousal support could possibly be awarded to the convicted spouse.
Domestic Violence and Marital Property Division
Domestic abuse could also impact the division of community property in your divorce. There are examples where a conviction on a charge of domestic violence could be raised during the process of property division. This is particularly true when the court has reason to believe the domestic violence was a factor in the deterioration of the marriage. A judge might additionally find that domestic violence against a spouse could have had a negative economic impact on that spouse in the form of unexpected medical bills or a limited ability to seek or sustain employment. In plain English, if the abuse inflicted an unreasonable reduction of the marital assets, then the one who was the victim may be awarded more of the marital assets in the divorce. This can override the fact that California is a community property state.
Must There Be a Criminal Case to Support My Claims of Domestic Violence in the Family Court?
Even though protections recently added are also being phased into family law situations to protect the rights of victims of domestic abuse, it can still be a perilous act, for women in particular, to speak out about domestic violence in family court absent of documentation from a criminal case to support their claim. In numerous situations, when a victim of domestic violence voices their plight in a family court proceeding, whether it is in effort to get an order of protection or in relation to child custody and visitation in a divorce, the door has, regrettably, opened for the perpetrator to bring “counter attacks”.
That said, in response to this question, even though a criminal matter is not a necessary precursor in family court for a victim to speak out about the violence that they have endured in their marriage, having documentation definitely helps. A criminal case puts the significant authority of the state of California firmly against an accused abuser.
How Family Court Decisions on Domestic Violence Affect Child Custody Decisions
If the judge ruling over your family court matter finds there is evidence of domestic violence, this finding would probably have a great impact on child custody for years to follow. In general, should the court find that a parent who is seeking custody of a child has committed acts of domestic abuse against the other parent or the child, the knee jerk presumption is that the alleged abuser should not get any custody of the child or children. California Family Code 3044 spells out what the term “perpetrating domestic violence” means. It dictates that the person needs to have intentionally or recklessly imposed or attempted to inflict bodily harm, or must have given the other person reason to be concerned that he or she was in peril of bodily injury.
The court is not permitted to make findings of domestic abuse based simply on the recommendation of any Family Court Services staff or a child custody evaluator. It must review any “relevant, admissible evidence” brought by both parties. A person who the court believes committed an act or acts of domestic abuse might still be qualified get some form of custody if that person can demonstrate that they have:
- Completed a treatment program which met the criteria laid out by the California penal code;
- Complied with all terms of probation or parole;
- Completed a parenting class or workshop;
- Completed an alcohol or drug program, where applicable;
- Obeyed any orders of protection in place, and
- If it is determined that it is in the best interests of the children for that parent to be given some level of custody.
You may see it as strange that visitation is even being considered for your abuser. Do keep in mind that so long as he or she has not harmed the children, visitation rights will probably be granted. Depending upon your scenario, you may want to ask for supervised visitation and organize a safe drop off and pick up location. .
Speak with an Orange County Domestic Violence Attorney Today
If you live with domestic abuse, or conversely, or if you are up against false accusations of domestic violence, it is extremely important that you tell your Orange County family attorney every relevant detail. This will make it easier for your attorney to properly represent you in your matter. He or she, armed with your complete disclosure, can put up a strong case on your behalf that takes all the relevant facts into serious consideration.
Can he get custody if he has a history of domestic abuse?
The laws surrounding divorce and custody can be extremely complicated, and matters get even more complex when domestic abuse is also brought up. If your spouse has a history of domestic violence, it is understandable to want to keep your children away from him. Though domestic abuse does not automatically prevent a person from ever seeing their children, it can greatly improve your chances of getting total custody. To fully understand how domestic abuse may affect the custody hearing for your divorce, keep reading this article.
What Counts as Domestic Abuse?
Legally speaking, domestic abuse is a fairly broad category. It can be a wide range of felony or misdemeanors that involve some sort of violence being committed towards a spouse, partner, child, family member, or someone else living in a home with a person. It can take many forms, including physical violence, emotional manipulation, threats, molestation, or verbal abuse. In general, anything that involves your ex being cruel or controlling towards you, your child, past partners, other children, siblings, or parents may be relevant when determining custody.
How Will Abuse Affect the Court’s Decision About Custody?
When a court is hearing a custody case, the main thing they will be considering is simply what the best interests of your child will be. The things you bring up in court will affect the judge’s decision of course, but their primary goal will just to decide what is best for the child. Because there is a high risk of a child being hurt by a domestic abuser, most courts will tend to act very conservatively in cases that involve domestic abuse. They will typically try to be on the safe side and avoid awarding custody to a domestic abuser.
However, a history of domestic abuse does not automatically mean that you will win full custody. Even if the person was already convicted of domestic violence, the court may still consider custody if the incidents were not directed at the child. They may also consider providing custody if the incidents were far in the past and the abuser has completed some sort of domestic abuse rehabilitation program. Your behavior and past may play a part in this sort of situation, because the court will be trying to decide whether it is safer to award you total custody or go with some sort of other option.
Can an Abuser Still Have Visitation Rights?
Though it is rather are for a domestic abuser to actually get full or partial custody of a child, this does not mean that a history of domestic abuse will keep your ex from ever seeing the child. Courts determine visitation separate from custody, so something that blocks a person from getting custody may not block them from getting visitation rights. This occurs because courts generally feel it is best for a child to have a relationship with both of their parents.
It may be possible for a domestic abuser to have visitation rights, but you and your lawyer may be able to show that it is a good idea for the court to limit these visits. Depending on the situation, the court may limit visitation rights to brief visits or order supervised visits only. Any sort of claims of past domestic abuse can affect the type of visitation rights that the court awards to a person.
What Should You Do If an Abusive Ex Wants Custody?
Keep in mind that courts will not automatically decide in your favor simply because you tell them that your ex partner was abusive. They will take into account allegations of domestic violence, but it is generally best to have some proof that it occurred. If your ex was actually convicted of domestic abuse, it will be very easy to prove. However, your spouse does not necessarily have to be convicted to lose custody. In some cases, even accusations or allegations may be enough to reduce a person’s chances of getting custody. You may be able to tell the court about the abuse with things like photos of injuries, police reports, or witnesses testifying on your behalf.
To keep an abusive ex partner from getting custody, it is useful to have plenty of proof and help from a professional attorney. Having a good lawyer on your side will help you to more accurately explain your situation and show the court why it is in your child’s best interest to stay away from your ex. Since each specific state tends to have their own unique laws surrounding custody and domestic abuse, you will need someone who is quite knowledgeable about custody law in your state. Navigating all of the challenges of a child custody case with domestic abuse will be tricky, but there is hope that you may be able to get the best possible outcome.