Los Angeles Domestic Violence Attorney
The Los Angeles domestic violence attorneys at Fernandez & Karney have over 100 years of combined experience handling domestic violence cases throughout Los Angeles.
We work tirelessly to present your case to ensure a positive outcome for you and your loved ones. If you are asserting or defending against a domestic violence charge, obtaining professional and proven successful counsel is a must. Domestic Violence cases are treated differently than other criminal cases and such family law hearings are in fact mini-trials. You must take all necessary measures to be fully and effectively prepared.
Under the Domestic Violence Prevention Act (California Family Code § 6200 et seq.), domestic violence charges cover a wide range of abuse, including spousal abuse and child endangerment. Any threatening or violent act, even if the accused did not intend to harm or compromise the safety and security of the victim, could be grounds for prosecution under the California Domestic Violence laws.
Domestic Violence Overview
Domestic violence is defined as abuse by one partner against the other in a marriage or other type of intimate relationship. According to the California Partnership to End Domestic Violence:
- Approximately 40 percent of women in California will experience domestic violence during their lifetime,
- Women between the ages of 18 and 24 are significantly more likely to be victims of domestic violence than other age groups,
- Of those women, 75 percent had children under the age of 18 in the home,
- In California, about 40 percent of the calls regarding domestic violence involved the use of a weapon, and
- Domestic violence programs in California answer about 38 calls per hour
Examples of domestic violence abuse include:
- Annoying Phone Calls
- Stalking (such as following the victim to and from work and threatening the victim)
- Physical Assault or abuse (hitting, slapping, pushing, shoving or kicking)
- Verbal, social, and sexual abuse.
Domestic Violence and Your Divorce
Although California is a no-fault state regarding divorce, there are some instances where fault could be a factor, namely a domestic violence conviction. In California, when a spouse has been convicted of domestic violence against the other spouse within the past five years, the presumption is that the convicted spouse should not receive an award of spousal support. Keep in mind, this is a “rebuttable” presumption, not an automatic presumption, meaning the convicted spouse is allowed to present evidence to “rebut” the presumption against him or her. If there was domestic violence on both sides, then this may be taken into consideration by the judge, and spousal support could be awarded to the convicted spouse.
Domestic violence could also have an impact on the division of property in your divorce. There are instances where a conviction for domestic violence could be weighed during the process of property division, particularly if the court believes the domestic violence was a factor in the demise of the marriage. A judge might also find that domestic abuse against one spouse had an adverse economic impact on that spouse, perhaps through increased medical bills, or a decreased ability to seek employment. In short, if the domestic violence resulted in an unreasonable depletion of marital assets, then the spouse who suffered the domestic violence might be awarded more of the marital assets, despite the fact that California is a community property state.
Divorce can occur because of domestic violence, and divorce can be a triggering event for domestic violence. Most often, the danger of violence in an abusive relationship is at its highest when the abused person makes the decision to end the relationship. This can mean that when a divorce is imminent, the abuser may “ramp up” his or her violence. It is important to know there are certain protections available under California family law.
Must There Be a Criminal Case to Back Up Claims of Domestic Violence in Family Court?
Although new protections are being phased into family law situations to protect those who are victims of domestic violence, it can still be risky for women in particular to present claims of domestic violence in family court with no criminal case documentation to back them up. In far too many cases, when a victim of domestic violence voices his or her claims in family court, whether in an attempt to seek a restraining order or in relation to custody and visitation or a divorce, the door has, unfortunately, been opened for the perpetrator to launch “counterattacks” so to speak. Family court was simply not designed to deal with claims of domestic violence, and if the victim is unprepared, it creates significant vulnerability.
So, while a criminal case is not a mandatory precursor in family court for a victim to bring up claims of domestic violence, it certainly helps. A criminal case places the significant power of the state of California against an accused person, while the family court arena is a venue which allows two private individuals to hash out their personal differences. The state, in this case, can be little more than a referee between the two. Although both spouses are likely to have their own attorney in a family court dispute, to some extent they are on their own as far as making or defending allegations of domestic abuse. In short, the accusations made by a victim of domestic violence in a family court proceeding, are, at the end of the day, simply one person’s presentation of the facts as he or she sees them. Once those accusations are made, the abuser is extremely likely to fight back with accusations of his or her own.
Leaving Your Abuser
As noted, there are certain protections available for those who are dealing with domestic violence and find themselves in family court. If you are in a domestic violence relationship, you will have different issues to consider once you decide to file for divorce, or when you separate from your spouse, particularly if there are children involved. In order to make the safest transition, keep very careful records of every incident of domestic violence which occurs prior to the actual split. These records can be an invaluable resource when you go before a judge in family court and ask that you and your children be protected.
If it is at all possible, do a little bit of planning before you file for divorce, in that it could be extremely helpful to have some cash saved, and to have a safe place to stay—preferably one that your spouse will not immediately look. Going to a best friend’s place or a close family member’s place can result in more violence from an abuser.
If you have to leave quickly, it is important that you immediately ask for an emergency protective order which will give you custody of your children, and require that your spouse stay away from you. If you fail to do this, you could be accused of kidnapping. The emergency custody order will be temporary, so you will need to make long-range plans regarding custody of your children—the judge will make a custody decision based on the best interests of the children, therefore you must make sure everything is documented, and every requirement is met.
Impact of Family Court Findings of Domestic Violence on Child Custody
If the judge in your family court case finds there is evidence of domestic violence, this finding could have a profound effect on child custody for years to come. Generally speaking, when the court finds that a parent who is currently seeking custody of a child engaged in domestic violence against the other parent or the child, the presumption is that parent should not receive joint or sole legal or physical custody of the child. California Family Code 3044 describes what is meant by “perpetrating domestic violence.” The person must have intentionally or recklessly caused or attempted to cause bodily injury, or must have given the other person reasonable belief that he or she was in danger of bodily injury.
The court is not allowed to make findings of domestic violence solely on the recommendation of the Family Court Services staff or a child custody evaluator, rather must consider any “relevant, admissible evidence,” submitted by both parties. A parent who the court believes committed an act or acts of domestic violence may still be able to be awarded some form of custody if the parent has:
- Completed a treatment program which met the criteria set forth by the California penal code;
- Complied with any terms of probation or parole;
- Completed a parenting class;
- Completed a drug or alcohol program, if applicable;
- Complied with any issued restraining order, and
- If it is deemed to be in the best interests of the children for the parent to be awarded some level of custody.
You may find it odd that visitation is even on the table for your abuser, however remember that so long as he or she has not abused the children, it is likely visitation rights will be granted. Depending on your situation, you may want to ask for supervised visitation and to have a neutral drop off and pick up site. If you feel there is little likelihood your children’s other parent will ever harm them, whether emotionally or physically, then despite how you may feel about your abuser, try to remember that children need both parents, regardless of how difficult it may be for you.
Temporary Restraining Orders
Obtaining a temporary restraining order against an abusive spouse can be very intimidating for some. A temporary restraining order can help keep an abusive spouse away from you and your children, at least for a period of time. Most of the time a restraining order applies to your:
- The school your children attend, or a childcare facility where your children stay.
If your spouse violates the restraining order, you can notify the police, and have them reiterate the requirements or arrest him or her. When you complete the restraining order forms, you will be required to explain in detail why you need the restraining order. It is crucial you be as thorough as possible in your explanation.
In some instances, once a temporary restraining order is filed—or even if it is not—the domestic abuser may engage in stalking behaviors. Just as you should thoroughly document all instances of domestic violence, you should also document every instance of stalking, as you are entitled to protection. Any unwanted, repeated contact which frightens you is probably considered stalking. Stalkers may:
- Call you repeatedly after you have made it clear you do not want to talk;
- Text or e-mail you when you have asked him or her not to;
- Follow you;
- Show up where you are without a reason;
- Gather information about you;
- Spread untrue rumors about you;
- Post personal information about you, or
- Refuse to leave you alone.
Never downplay your fear of an ex who is stalking you. It is important for your safety as well as important for your eventual family court case that you contact the police and report any stalking behaviors.
Speak with Los Angeles Domestic Violence Attorney Today
If you are a victim of domestic violence, or you have been falsely accused of domestic violence, it is extremely important that you tell your California family law attorney every relevant fact. This will allow your attorney to fully represent you, and to build a case on your behalf which takes these facts into account.
When you retain Fernandez & Karney, you have a team of experienced divorce attorneys, forensic accountants, investigators, and highly skilled support staff resolving your case. For more information on our Domestic Violence legal services, contact us for a no-charge consultation to discuss your concerns.