Domestic Violence

In certain physically and emotionally abusive situations, a party may seek restraining orders under the Domestic Violence Protection Act, which is part of the California Family Code. The court may make many specific orders, including those ordering the perpetrator to stay away from the victim, have no contact with the victim, vacate the family residence, and orders regarding the perpetrator's firearms. These orders are referenced by law enforcement through the Department of Justice database and are enforced vigorously by the local police or sheriff's department.

Frequently Asked Questions

WHAT IS DOMESTIC VIOLENCE?

The National Coalition Against Domestic Violence defines domestic violence as:

"…a pattern of behavior with the effect of establishing power and control over another person through fear and intimidation, including threats and the use of violence. Battering happens when batterers believe they are entitled to control their partners, when violence is permissible, when violence will produce the desired effect or prevent a worse one, and when the benefits outweigh the consequences."

Not all battering is physical. Battering includes emotional abuse, economic abuse, sexual abuse, using children, threats, using male privilege, intimidation, isolation, and a variety of other behaviors used to maintain fear, intimidation, and power.

Battering escalates. It often begins with behavior like threats, name calling, violence in the victim’s presence (such as punching a fist through a wall), and or damage to objects or pets. It may escalate to restraining, pushing, slapping, pinching. The battering may include punching, kicking, biting, sexual assault, tripping. Finally, it may become life threatening.

Although there is no profile of the person who will be battered, there is a well-documented syndrome of what happens once the battering starts. Battered individuals experience shame, embarrassment, isolation, repression of feelings, and may be prevented by control and fear from planning or acting in their own behalf.

If you need immediate help, call 911!

THOSE WHO COMMIT DOMESTIC VIOLENCE CAN BE PROSECUTED!

Important Domestic Violence Phone Numbers:

National Domestic Violence Hotline 1-800-799-SAFE {1-800-787-3224}

(TDD service) providing emergency and non-emergency referrals to domestic violence resources in your area (multilingual service available).

Resource Center on Child Protection and Custody 1-800-527-3223

National Council of Juvenile and Family Court Judges Providing information, consultation, technical assistance and legal research related to child protection and custody issues within the context of domestic violence.

Health Resource Center on Domestic Violence 1-800-313-1310

Family Violence Prevention Fund Providing specialized information packets designed to strengthen the health care response to domestic violence, as well as technical assistance and library services to support health care-based domestic violence training and program development.

IS THERE A COURT FILING FEE FOR FILING PAPERS SEEKING TO OBTAIN, MODIFY OR ENFORCE A DOMESTIC VIOLENCE PROTECTIVE ORDER?

Answer – NO.

STATUTE PROVIDES:

"There is no filing fee for an application, a responsive pleading, or an order to show cause that seeks to obtain, modify, or enforce a protective order or other order authorized by this division when the request for the other order is necessary to obtain or give effect to a protective order.” (Family Code §6222 (a).)

WHAT IS THE EFFECT OF A FINDING OF DOMESTIC VIOLENCE ON CUSTODY ORDERS?

Domestic violence is exception to frequent and continuing contact policy.

STATUTE PROVIDES:

"(a) ...The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.

(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in [Family Code §3011]...." (Family Code §3020.)

In determining best interests of child, court must consider abuse by one parent against other or child.

STATUTE PROVIDES:

"In making a determination of the best interest of the child in a proceeding described in [Family Code §3021], the court shall, among any other factors it finds relevant, consider all of the following...

...(b) Any history of abuse by one parent or any other person seeking custody against any of the following:

(a) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.

(b) The other parent.

(c) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, 'abuse against a child' means 'child abuse' as defined in [Pen. Code §11165.6] and abuse against any of the other persons described in paragraph (2) or (3) means 'abuse' as defined in [Family Code §6203].” (Family Code §3011 (b).)

Effect of a finding of prior domestic violence on future custody orders:

STATUTE PROVIDES:

"(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to [Family Code §3011]. This presumption may only be rebutted by a preponderance of the evidence.

(b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:

(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child.

(2) Whether the perpetrator has successfully completed a batterer’ s treatment program that meets the criteria outlined in [Penal Code §1203.097 (c)].

(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.

(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.

(5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions.

(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

(d) For purposes of this section, a person has ‘perpetrated domestic violence’ when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to [Family Code §6320] to protect the other party seeking custody of the child or to protect the child and the child’s siblings." (Family Code §3044.)

Visitation/custody orders after finding of domestic violence must specify the time, day, place, and manner of transfer of the child...

STATUTE PROVIDES:

"When making any order for custody or visitation pursuant to this section, the court's order shall specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. Where the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court's order for time, day, place, and manner of transfer of the child for custody or visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location. (Family Code §6323 (c).)

When making visitation/custody orders after a finding of domestic violence, the court shall consider whether supervised visits, suspension or denial is appropriate...

STATUTE PROVIDES:

"When making an order for custody or visitation pursuant to this section, the court shall consider whether the best interest of the child, based upon the circumstances of the case, requires that any visitation or custody arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether visitation or custody shall be suspended or denied." (Family Code §6323 (d).)

HOW DO THE RULES FOR CHILD MEDIATION DIFFER WHERE THERE IS A HISTORY OF DOMESTIC VIOLENCE?

ANSWER – A separate mediation must occur, on the request of the abused party, if there is a history of domestic violence.

STATUTE PROVIDES:

"(a) In a proceeding in which mediation is required pursuant to this chapter, where there has been a history of domestic violence between the parties or where a protective order as defined in Section 6218 is in effect, at the request of the party alleging domestic violence in a written declaration under penalty of perjury or protected by the order, the mediator appointed pursuant to this chapter shall meet with the parties separately and at separate times." (Family Code §3181 (a).)

DO COURTS CONSIDER SUPERVISED CHILD VISITATION IF THERE IS A HISTORY OF DOMESTIC VIOLENCE?

STATUTE PROVIDES:

"If a protective order, as defined in [Family Code §6218], has been directed to a parent, the court shall consider whether the best interest of the child requires that any visitation by that parent shall be limited to situations in which a third person, specified by the court, is present. The court shall include in its deliberations a consideration of the nature of the acts from which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court the name of a person that the parent deems suitable to be present during visitation.” (Family Code §3100 (b).)

CAN I BE THROWN OUT OF MY OWN RESIDENCE?

The Court can and usually will order you to move out of your residence if your spouse convinces the court that you have been violent towards your spouse, or threatened your spouse. You could be given "ex-parte" notice to be in court the next day because your spouse is seeking an order that you move out and stay out. You can be ordered to leave immediately, and not return, even if your spouse is not on title or not on the lease agreement! Once you are ordered to leave, it is not likely that you will be allowed to return.

DOES A HISTORY OF DOMESTIC VIOLENCE AFFECT THE ISSUANCE OF A SPOUSAL SUPPORT ORDER IN FAVOR OF THE PERPETRATOR SPOUSE?

YES - There is a presumption that a spousal support order should not be made in favor of a spouse convicted of a crime of domestic violence.

STATUE PROVIDES:

“(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.

(b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.

(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.” (Family Code §4325.)

NOTE: This statute became effective as of 1/1/2002.