Domestic violence can affect anyone of any age, gender, race, sex, and social or economic status. This means it is imperative to understand what domestic violence is and what can be done about domestic violence. This means it is also important to understand that domestic violence can impact judicial decisions regarding child custody and spousal support. When allegations of domestic violence enter the equation, a skilled family law attorney can help.
What is Domestic Violence?
Domestic violence is abuse perpetrated against a person who is in an intimate relationship with the abuser or is closely related to the abuser by blood or marriage such as a spouse or domestic partner, former spouse or domestic partner, child of a party, someone the abuser is dating or used to date, or someone the abuser lives with or used to live with. California defines abuse as any of the following:
- Intentionally or recklessly causing or attempting to cause bodily injury;
- Sexual Assault;
- Placing someone in reasonable apprehension of imminent serious bodily injury; or
- Behavior like harassing, attacking, stalking, threatening, assaulting, hitting, molesting, striking, making annoying phone calls, impersonating someone, destroying someone's personal property, or disturbing someone's peace.
Given the definition, abuse can be more than just physical. It can also be verbal or a pattern of control.
What Can Be Done About Domestic Violence?
If an individual is being subject to abuse by someone they are in an intimate relationship with or closely related to, they may file for a domestic violence restraining order. A domestic violence restraining order is a court order that protects a person from abuse. It can do some or all of the following:
- Place conduct restraints on the restrained party, such as order the restrained party not to molest, attack, strike, stalk, threaten, sexually assault, batter, or impersonate someone.
- Order the restrained party not to contact the protected party, either directly or indirectly, in any way, including but not limited to, by telephone, mail, or e-mail, or other electronic means.
- Order the restrained party to stay away from the protected party, the protected party's home, the protected party's job or workplace, the protected party's school, the children of the protected party, and the children of the protected party's school.
- Exclude the restrained party from the family residence.
- Prevent the restrained party from owning, possessing, having, buying or trying to buy, receiving or trying to receive guns, other firearms, or ammunition.
- Allow the protected party to record communications with the restrained party that violate the judge's orders.
- Give the protected party sole possession, care, and control of certain animals.
- Make or modify child custody and visitation orders.
- Make or modify child support and spousal support orders.
- Transfer rights to a cell phone number and account to the protected party.
- Order the restrained party to pay certain bills.
- Stop the restrained party from making any changes to insurance policies.
- Order the restrained party to complete a batter's intervention program.
Domestic Violence and Child Custody in California
When the family court finds that a parent seeking custody has perpetrated domestic violence, the family can expect it to impact custody arrangements. California law presumes that if a parent has perpetrated violence against the other parent or any children -- including adopted children -- within the last five years, it is not in the child's best interest for that parent to have joint or shared custody. Visitation or supervised visitation is sometimes permitted. Even if domestic violence happened in the distant past, a family court judge could deem the behavior relevant to custody decisions.
It is important to note that when a court “presumes” a certain legal conclusion, it means that the party harmed by the presumption carries the burden of rebutting or refuting it. This does not mean, though, that a domestic violence finding definitively prohibits a parent from joint or sole custody. California courts may consider awarding custody, even when there is a history of domestic violence if there is evidence that the person completed a parenting class, rehabilitation program, drug or alcohol counseling, probation, or parole.
Put another way, if the court finds domestic violence relevant in your custody case, and:
- You are the parent with a domestic violence finding against you, you must prove to the court you have changed and do not pose any harm to your children -- only then will you have a chance at custody.
- You are the parent without a history of domestic violence, you will be awarded custody of your children unless the other parent can prove they have changed and do not pose any harm to your children.
Domestic Violence and Spousal Support
Spouses who the court has found to have committed an act of domestic violence will have a harder time convincing a court to award him or her spousal support. If there is a finding of abuse within the last five years, the court will presume that spousal support should not be awarded to that person. However, as explained above, a legal presumption is not a foregone conclusion. The person with the domestic violence record will have the burden of proving that spousal support is appropriate in spite of the domestic violence findings.
Domestic Violence Arrests and Restraining Orders
In California, domestic violence reports are taken seriously. A person can request an emergency or temporary restraining order fairly easily against a spouse. Similarly, a person can call 9-1-1, report domestic violence, and have law enforcement respond within minutes. If there is probable cause that violence has occurred, law enforcement will make an arrest.
While these legal responses are typically appropriate and necessary, they can also be misused or the facts can be misinterpreted. Sometimes a call and an arrest are made, but the case is never prosecuted. In other cases, a temporary restraining order is granted against a spouse, but the facts do not warrant a permanent restraining order.
In all cases, it is wise to anticipate that a domestic violence restraining order could impact a decision related to child custody and spousal support. It is important to seek out a reputable, responsive attorney when such an issue arises.
Contact a Knowledgeable California Divorce Attorney with Domestic Violence Experience
The details surrounding domestic violence cases can sometimes become murky. There is a tendency for some spouses to make false allegations of violence in order to gain an advantage in a custody dispute or to avoid paying support. There are also cases where the domestic violence has been mutual and the blame is not so clear-cut.
Regardless of the facts surrounding your case, if you have been a victim of domestic violence or have been wrongly accused of domestic violence, it is critical to become informed of the laws that could either harm or enhance your position.
it is in your best interest to seek out an experienced California family law attorney. Contact attorney Jaime Kissinger for an initial consultation and advice that will help you leverage your case in Contra Costa County, Sacramento County, Solano County, or Yolo County.