Domestic Violence: 3 Family Law Factors to Break Free…

November 7, 2024November 7, 2024
by Dr. Thomas Maples

Domestic violence is not your fault. We can help.

A Safe Haven During Troubled Times

Domestic violence casts a dark shadow over families, leaving a trail of pain, fear, and uncertainty. We understand that arriving at this page might mean you’re facing a difficult and frightening situation. At Maples Family Law in Stockton, we believe that no one should endure abuse, and we are committed to providing a safe haven of family law support for victims seeking justice and protection.

In California, the courts recognize the devastating impact of domestic violence and have laws in place to protect victims while holding abusers accountable. But navigating the legal system while dealing with the trauma of domestic violence and abuse can be overwhelming. That’s where we come in.

This article explores how domestic violence intersects with family law proceedings and outlines the options available for those seeking safety and a fresh start. We’ll discuss how domestic violence affects:

Custody and Visitation: Prioritizing the safety of children
Protective Orders: Creating a shield against further abuse
Financial Support: Ensuring victims are not further burdened

If you or someone you know is experiencing domestic violence, please know that you are not alone. Maples Family Law is here to provide compassionate legal guidance and unwavering support as you navigate this challenging journey.

Domestic Violence, Custody, and Visitation: Putting Children First

When domestic violence enters a home, it’s not just the adults who suffer. Children caught in the crossfire are deeply affected, and their safety and well-being become paramount in any family law proceeding. California courts understand this and take a strong stance in prioritizing children’s best interests when domestic violence is present. Here’s how a history of abuse can shape custody and visitation orders:

Supervised Visitation: Shielding Children from Harm

In cases where there’s a risk that a parent might harm a child, either physically or emotionally, the court may order supervised visitation. This means that visits with the child must occur in the presence of a neutral third party, such as a social worker or a trained supervisor at a designated facility.

Why Supervised Visitation?

This measure allows a child to maintain some form of contact with a parent while ensuring their safety.
It also offers the court a chance to observe the parent-child interaction and assess any potential risks.

Restricting Custody: Prioritizing Safety Above All Else

When domestic violence is severe or poses a significant threat to a child, the court may limit or even terminate the abuser’s custody rights. This decision is never taken lightly and is based on evidence that demonstrates a clear danger to the child’s well-being.

What Factors Are Considered?

The court carefully evaluates the severity of the abuse, the impact on the child, any patterns of coercive control, and the abuser’s willingness to address their behavior.
The primary goal is to protect the child from physical or emotional harm.

Protecting the Victim: Creating a Safety Net

The court has the power to issue orders that safeguard both the victim of domestic violence and the child. These may include:

Restraining Orders:

These orders prohibit the abuser from contacting or coming near the victim and their children.
They can provide a crucial barrier against further abuse and harassment.

No-Contact Orders:

These orders may be put in place to prevent any direct or indirect contact between the abuser and the child, especially in cases where the abuse was directed at the child.

The Financial Scars of Abuse: How California Law Protects Victims

Domestic violence often leaves victims grappling with more than just emotional and physical wounds. Abusers frequently use financial control as a tool of power and manipulation, leaving their partners in a precarious economic position. California law recognizes the devastating impact of this financial abuse and offers several protections:

Spousal Support: Acknowledging the Impact on Earning Capacity

When determining spousal support (also known as alimony), the court takes into account the impact domestic violence has had on a victim’s ability to earn a living. Abuse can disrupt careers, limit educational opportunities, and create long-lasting financial insecurity.

Factors Considered: The court may consider the length of the marriage, the victim’s earning potential, the abuser’s financial resources, and the extent to which the abuse hindered the victim’s ability to become self-sufficient.
Goal of Support: Spousal support aims to help the victim regain their footing and establish financial stability after leaving an abusive relationship.

Child Support: Ensuring Children’s Needs Are Met

Domestic violence doesn’t just affect the adults involved; it also has a profound impact on children. California courts prioritize the well-being of children in cases of abuse.

Calculating Support: When determining child support, the court considers the financial needs of the child and the income of both parents. Domestic violence can be a factor in this calculation, as the court seeks to ensure the child’s needs are met despite the circumstances.
Protecting the Child’s Future: The court may order the abuser to pay a higher amount of child support if their abuse has negatively impacted the victim’s ability to provide for the child.

Financial Abuse: A Hidden Form of Control

California law explicitly recognizes financial abuse as a form of domestic violence. This type of abuse involves tactics designed to control a partner’s access to resources and create economic dependency. Examples include:

Controlling Finances: Limiting access to bank accounts, credit cards, or cash.
Sabotaging Employment: Interfering with a partner’s job by constantly calling, making them miss work, or even getting them fired.
Running Up Debt: Secretly using a partner’s credit cards or opening accounts in their name.
Withholding Necessities: Refusing to provide basic needs like food, shelter, or medical care.

Finding Strength and Support in the Face of Abuse

Leaving an abusive relationship takes immense courage. It’s a journey fraught with emotional turmoil, legal complexities, and financial uncertainties. It is a journey that encompasses rebuilding your emotional health and self-esteem (mental health) and navigating the complexities of the legal system concurrently. But you don’t have to walk this path alone. At Maples Family Law, we understand the challenges you face and are here to provide compassionate guidance and unwavering support every step of the way.

Our experienced team is dedicated to protecting your rights and advocating for your safety and well-being. Whether you need help securing a restraining order, navigating child custody arrangements, or establishing financial independence from your abuser, we will be your steadfast allies in the pursuit of justice and healing.

Remember, you are not defined by the abuse you’ve endured. You are strong, resilient, and deserving of a life free from fear and violence. Let us help you reclaim your power and build a brighter future for yourself and your children.

If you are ready to take the first step towards a safer tomorrow, reach out to Maples Family Law today. We are here to listen, to support, and to empower you on your journey to healing and freedom.

Resources

Domestic Violence

October 9, 2021
by Briana White

Divorce is never easy, but for families struggling with domestic violence, the transition can be even more complicated—especially for those who have children, need to file a restraining order, or are worried about retaliation.

Each state has different laws for handling domestic violence during divorce. In some jurisdictions, these offenses can warrant the filing of a fault-based divorce, and end up affecting the division of marital property in favor of the abused spouse. They can also impact child custody, alimony, and even result in criminal charges.

Here’s what you need to know about how domestic violence can impact your divorce in California, and what the Maples Family Law team can do to help you navigate this rocky transition.

Overview of Domestic Violence

In California, domestic violence is defined as any abuse—or threat of abuse—that comes from a romantic partner.

Naturally, this definition includes a spouse, but it actually goes further, encompassing any type of romantic relationship, such as someone you’re living with, a domestic partner, a co-parent you share a child with, and even just someone you’re dating (or used to date).

Under this definition, abuse can come in many different forms, and—according to the domestic violence guidelines on the California.gov website—can include things such as:

The act of physically hurting (or trying to hurt) someone, either intentionally or unintentionally;
Making someone think that they (or someone they love) is going to be hurt;
Sexual assault;
Harassment, stalking, threats, and disturbing the peace; and even,
The destruction of personal property.

As you can see, this type of abuse does not require physical contact with another person—or even their property—in order to be considered domestic violence. It can be as subtle as emotional abuse and threats levied against someone you love, and can even include unintentional physical harm.

But, what does this mean when filing for divorce?

Here are some of the ways that domestic violence can impact your divorce, including the division of marital property, child custody, and alimony.

Domestic Violence and Marital Property

At its most basic form, marriage is just a contract; a commitment between two people, who want to be seen as a single entity in the eyes of the law. That’s why several states allow individuals to file for divorce under fault-based grounds.

In a fault-based divorce, the court can assign blame, and hold one spouse financially accountable for their part in the marriage breakup. This is typically done by awarding the victim a larger share of the marital property.

Along with things like infidelity and drug abuse, domestic violence is one of the primary grounds used in these jurisdictions for filing under fault. That being said, California is not one of those states.

As a strictly, no-fault divorce jurisdiction, you cannot file for divorce in California using domestic violence as your grounds. In addition—because judges cannot consider guilt or blame when dividing marital property—you also cannot use domestic violence to receive a greater share of your community pot.

However, that doesn’t mean domestic violence can’t impact your divorce at all…

Domestic Violence and Child Custody

One of the biggest ways domestic violence can shape a California divorce, is in the area of child custody.

In California, custody decisions are made based on what is in a child’s best interest. This legal standard is driven—not by what parents want—but by what will serve a child’s long-term health and welfare the best.

Under these guidelines, sole versus joint custody decisions are determined by weighing factors such as:

A child’s health, safety, and welfare.
A child’s preference (if over twelve).
Each parent’s past role in their child’s life.
Each parent’s ability to care for their child, post-divorce.
Any history or threat of domestic violence.
Any history of drug abuse.

When considering domestic violence, it is not even necessary that the child has experienced the abuse themselves. In California, domestic violence is still a consideration, even if the harm was only ever carried out on the child’s other parent.

Domestic Violence and Alimony

According to the California Family Code, courts are also required to consider domestic violence when making decisions about alimony.

Alimony (or “spousal support”) are regular payments that a judge orders one spouse to pay the other, in order to help support their care after the breakup. This money is often awarded to a homemaking spouse, to help get them back on their feet after so many years out of the workforce.

In California, judges cannot require victims of domestic abuse to pay their spouse alimony, however, this is somewhat contingent on what evidence is available at the time of divorce.

A conviction of domestic violence within the past five years is the strongest type of evidence. If available, this creates a “rebuttable presumption,” which essentially means that the court has to operate as if the abuse exists/existed. As a result, a victim of this violence cannot require to:

Pay temporary or permanent spousal support; or,
Pay their spouse’s attorney’s fees from separate property.

If you don’t have a conviction, you may still be able to get an exemption from alimony. Talk to your attorney about what evidence you may need, and be sure to document any further abuse in as much detail as possible, since the state may want to file criminal charges, as well.

Domestic Violence and Criminal Charges

Domestic violence might have been the reason you decided to file for divorce, but it’s also a crime, and—depending on the severity of the offenses and the available evidence—these actions could be enough to land your spouse with criminal charges.

But what, exactly, does that mean? And how does a criminal charge differ from what you’re doing in divorce court?

Civil vs. Criminal Court

In the United States, there are two main branches of the court system:

Civil court
Criminal court

Criminal court deals with offenses like rape, theft, battery, assault, and so forth. These are harmful crimes committed by one person against another, and can result in fines and even jail time. In a criminal case, the state acts as the prosecutor against the accused.

On the other hand, a civil case is filed by an individual (or business) against another individual (or business). This branch handles pretty much everything that criminal court does not, including real estate transactions, business, contracts, probate, economics, family law, and so forth.

Divorce—like adoption and child custody—is a subset of family law, which means that these cases are generally held in civil court. However, when domestic violence is involved, civil and criminal courts often intersect.

Depending on your situation, the state of California might decide to file criminal charges against your spouse for domestic violence. If they do, these charges will be filed as a separate case, held in criminal court, and handled by a criminal court judge.

Unfortunately, while domestic violence is always a crime, it’s also often a secret crime—one whose harm doesn’t always leave a mark. Hence, in many situations, the state lacks the necessary evidence to prosecute.

California Domestic Violence Resources

It’s important to understand that—even without a bruise or scar—domestic violence is never okay. California courts take these crimes very seriously, and if you or a loved one are currently experiencing abuse, it’s critical that you talk to law enforcement (as well as your family law attorney), to figure out the best course of action in your situation.

If you don’t know where to start, or simply need help, these online resources can assist you with the process:

These sites can help you find a shelter, retain a free or low-cost attorney, and walk you through the steps for things like filing for a restraining order.

In the meantime, if the danger is immediate, don’t wait, and call the police right away.

Domestic Violence Divorce Attorneys in California

If you are dealing with domestic violence in your marriage, the most important thing to do is to keep yourself—and your children—safe. The next step is to get out of the situation as quickly as that safety will allow.

If you have more questions about domestic violence in California, and how this might affect your divorce, we want to help. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out the next best step for you.

family-law

Restraining Order in San Joaquin County

September 7, 2020September 7, 2020
by Anna Maples

On its own, divorce is not an enjoyable process. However, when abuse is involved, fear and anxiety can add a new level of stress to an already tense situation. Sometimes the abuse has been ongoing, other times, it might be sparked by the divorce process, itself. Either way, it’s never okay, and if you or a loved one are afraid of retaliation during divorce proceedings, know that there are options available to help keep you safe.

One common restraining order involved with divorce is a Domestic Violence Restraining Order, which offers protection against someone you are or have been in a relationship with, specifically when domestic violence is involved. However, protective orders are not restricted to violent situations, and are also available to individuals who do not have a history of abuse in the relationship.

Here’s a breakdown of these protective measures, and what you need to know about filing a restraining order in San Joaquin County.

Domestic Violence Restraining Order in San Joaquin County

A Domestic Violence Restraining Order (or, DVRO), is directed specifically at situations where abuse is being delivered by someone you are intimately involved with. This includes a spouse, domestic partner, or someone you lived with, but it also extends to dating relationships. Indeed, living with the person is not a requirement for a DVRO in California. The abuse need only come from a person you are—or were—intimately involved with, and is not limited to just physical harm.

Under California law, abuse is classified as:

Hurting or trying to hurt someone (either intentionally or recklessly);
Any form of sexual assault;
Causing fear of physical retribution (directed at an individual, personally, or toward a loved one);
Actions that prevent an individual from coming and going freely; and,
Issuing threats, which can be verbal, but can also come in the form of harassing, stalking, and the destruction of property.

This includes all forms of emotional and psychological abuse, even in the absence of physical harm. Hence, even if you have not been physically molested, you might still be able to file a Domestic Violence Restraining Order against your tormentor.

How to File a Domestic Violence Restraining Order

Individuals wishing to file a Domestic Violence Restraining Order in San Joaquin County can find the necessary forms either online or at the Civic Center Courthouse. There is no fee to file a DVRO, and an interpreter will be provided if needed. If the forms are filed before 10 a.m., the restraining order will be available between 2:30-4:00 p.m. the same day. If filed after 10 a.m., the order will be ready between 8:30 a.m. and 2 p.m. the following day.

Types of Restraining Orders in San Joaquin County

Generally speaking, DVROs are issued either as an Emergency Protective Order (EPO), or as a Temporary Restraining Order (TRO). Permanent Restraining Orders are less common, but are also available, especially for individuals caught in cycles of long-term abuse. However, even if domestic violence is not involved in your divorce, you can still get a restraining order against your former spouse, and there is a myriad of reasons why you might want to do so.

Below, are the three main types of restraining orders issued during divorce proceedings, and what situations they usually apply to.

Emergency Protective Order (EPO)

Emergency Protective Orders are handled exclusively by law enforcement and are typically requested when a police officer responds to a call of domestic violence. If the threat of harm is imminent, or the victim is unable to file for a restraining order on their own, the officer can call an EPO in to a judge at any time of day or night. The EPO will then take immediate effect and will last seven calendar days, or five business days (whichever is shorter). Civilians cannot file for emergency orders; however similar protections can be found by filing for a Temporary Restraining Order.

Temporary Restraining Order (TRO)

A Temporary Restraining Order is an action that will restrain an individual’s abusive conduct for a limited period of time. While similar to Emergency Protective Orders, TROs do not require a police officer’s request, and also last a little bit longer. Generally, the life of a TRO is about three weeks (20-25 days), after which the petitioner will be required to attend a full, evidentiary hearing. At these hearings, both parties will have the chance to present evidence in favor or against the restraining order.

Ex Parte Hearing

Sometimes, however, the threat is too great to wait for the traditional filing period. In these situations, an individual may request an ex parte hearing, or, in other words, an emergency meeting with the judge. These hearings occur within twenty-four hours of the request, and require the individual to show proof that immediate action is necessary to prevent imminent and irreparable damage to them. Once granted, the filer need only provide informal notice to the opposing party to make the order effective.

TROs and Divorce

Aside from emergency situations, Temporary Restraining Orders are also quite common in divorce cases. Often, they are filed at the onset of a case and will last for the duration of the proceedings. A TRO can be filed even without a history of abuse and can apply to contact as well as to conduct, making it especially useful for the spouse wary of retaliation. For example, a TRO can prevent a vindictive partner from doing something like liquidating assets, emptying bank accounts, or even removing children to another location without permission.

After the divorce is final, individuals who still need continued protection can file for a Permanent Restraining Order.

Permanent Restraining Orders

The final and most long-lasting type of protective measure is a Permanent Restraining Order. In order to obtain one, an individual must show that the fear (or danger) is ongoing, and there is no reason to think it will end. It’s a highly subjective and difficult to standard to satisfy, and are usually issued to protect victims with a history of long-term abuse.

Restraining Order Attorneys in San Joaquin County

In addition to DVROs and the various types of orders found in family law, there are also a number of protective orders available to shield victims in other situations. Understanding the nuances of each category and how to file can be overwhelming, especially when you add the pressure of unseen threats and danger that usually accompany the need for such tactics. If you are experiencing these types of threats—in or outside of a divorce—we may be able to help. Contact our office today at (209) 989-4425, or get in touch online to schedule a consultation, and together we can discuss what protective order might be best for your individual situation.

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