Some say “Love is a Battlefield” However Family Law Courts take a strong stance on Domestic Violence. An accusation of Domestic Violence can have an impact on child custody and the ability to revive Spousal Support. We assist parties in gaining restraining orders in cases of abuse and defend persons who have been wrongly accused of domestic violence in their family law case.
Are you a Victim of Domestic Violence?
Many couples argue during a divorce process and when preparing for a Divorce however it is important to note that there is a difference between arguments and abuse. It is also important to note that while in some instances Domestic Violence can be a criminal matter, the family law courts will provide additional protection and orders.
When physical violence occurs or if the domestic violence rises to a criminal nature, the first step is to contact the police. They can issue a criminal protective order. In most cases this order will only remain in effect while there are criminal charges pending or if there is a guilty verdict rendered. The criminal protective order can provide you with enough time to get the case filed in the Family Law Court.
Domestic Violence Prevention in the Family Law Court
The first step to obtaining an order in family court is that the court will look to the type of relationship you have with the abuser. You may seek orders in the family law court if you have a qualifying relationship, such as a spouse, live in boyfriend or girlfriend, other parent of a child or another family relation. If abuse is by a neighbor or someone without a qualifying relationship, the case would be filed in Civil Court.
When filing your case in family law court, you may name additional protected persons such as your children or other household members on your request. You can also seek orders for payment of spousal support, child support, legal fees and expenses that are related to the Domestic Violence incident. If you are seeking these orders, they must be requested at the time that you file your case in the Court.
Child Custody orders can be made at the time that case has been filed. It is important to note that if a parent has been found to have abused the other parent there is a rebuttable presumption against them having custody of the children. In some cases the court will not allow visitation until after the hearing and other cases will require the offender to take anger management classes prior to unsupervised visitations with the child. This will depend on many factors such as whether the children were present at the time of the abuse, the ages of the children and the severity of the domestic violence.
What Constitutes Domestic Violence?
Domestic Violence is not only limited to physical abuse. It also includes stalking, threats and emotional abuse. An example may be numerous repeated phone calls in a day or showing up at the victims home or work uninvited and refusing to leave. In some instances there are threats made over emails or text messages and continued hostile and unwanted contact. If you have call logs or text messages it is important to provide those as evidence to support your case. The burden of proof is on the accuser to show that there has been domestic violence that is sufficient to warrant a permanent restraining order which can last for 3-5 years and may impact the other parties ability to be employed, receive custody of the children or seek spousal support.
At the hearing you will be required to present evidence and you will have the opportunity to call witnesses. If the police responded to the Domestic Violence incident, those officers may need to be subpoenaed to testify as to what they have witnessed.
Have you been Falsely Accused of Domestic Violence?
If you have been falsely accused of Domestic Violence, you are going to want to insure that you do not inadvertently violate the restraining order by reaching out to the accuser. This is not a matter that you should attempt to settle without the assistance of the attorney.
If there are criminal charges pending against you, the family law court will grant a continuance of the hearing on the permanent restraining order to allow you to retain your 5th amendment right to remain silent. Anything that is said or presented in the family law case can be used in the criminal case, therefore this right is important to invoke. If there are temporary orders in place they will generally remain in place until the hearing on the restraining order.
How can this Accusation Impact me?
Domestic Violence can impact your ability to have Child Custody. If you have been found to have abused your spouse or the parent of your children, there is a presumption against awarding custody to you. Therefore it is important to assemble evidence and to call witnesses to testify on your behalf at the hearing. Although the burden is on the accuser, the courts will err on the side of caution in cases where harm may come to the children or the other parent. If there is a criminal action, there is often a temptation to settle that matter or plea to a lower charge. Make sure that your criminal attorney is coordinating with your family law attorney before entering into any plea deals in the criminal case as they will significantly impact the family law case.
Domestic Violence orders can also impact your ability to receive spousal support. The public policy is that spousal support should not have to be paid to your abuser. Therefore if there is a criminal conviction and in many cases a finding in family law court that abuse has occurred the Court may not award you spousal support or if awarded it may be less than an amount that can meet your needs.
Domestic Violence orders are entered into the California Law Enforcement system [CLETS] which means that they can show up on background checks. This may impact your ability to find or keep your job.
As a false accusation of Domestic Violence can negatively impact you in many areas of your life, you will want to make sure that your interests are represented and that you can have a solid defense. You may wish to present evidence for any defenses such as self defense where the accuser has actually been the one who has abused you. If there are witnesses that can show that the testimony is false, you will want them to testify. We recommend having legal counsel represent you and prepare your case so that you can have the best chance to prevail.