FAMILY LAW LITIGATION

Domestic violence is a very serious family law matter. A seemingly tiny shove in the heat of the moment, or a series of angry text messages, can have negative ramifications for months for years to come. Please consider your own conduct but also be aware of conduct on the part of your significant other.

A domestic violence conviction in family law court can have the following ramifications:

• Family Code Section 6321 – Exclusive residence possession (kick out orders).
• Family Code Section 3044 – Presumption that it is not in a child’s best interests for a DV perpetrator to have custody. This presumption MUST be overcome for the court to order custody to a DV perpetrator.
• Family Code Sections 4320(i) and 4325 – Anticipating and cutting off an anticipated spousal support request from a lower earner spouse.
• Family court also has jurisdiction to deny convicted DV perpetrator any share of the victim spouse’s retirement.
• The burden of proof for obtaining domestic violence restraining orders in family law court (as opposed to criminal court) is by a “preponderance of the evidence.” This means that a court merely has to think that it is more likely than not that domestic violence has occurred.

Domestic Violence and Spousal Support

California Family Code section 4325 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. NOTE: With a criminal conviction of DV, within five years there is a rebuttable presumption of NO support, period.

Family Code section 4320(i), regarding post-judgment spousal support, is being interpreted by courts as applying to temporary support order applications as well. It reads: “In ordering spousal support under this part, the court shall consider all of the following circumstances: (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.”

NOTE: 4320(i) does not require evidence of any kind of conviction! It gives the court discretion to deny spousal support, upon “[d]ocumented evidence.” In other words, even if a criminal court doesn’t hear your case, family court can still consider you a perpetrator of domestic violence!

Child Custody Family Codes

In determining child custody, Family Code 3044 states:

(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 Section 3011. It takes a preponderance of evidence to rebut this presumption.

(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. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.

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

(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) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.

(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.

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

(c) 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 Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.

(d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code.

(2)  The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years.

(e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.

(f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.

Child Custody Per the Court

If the court finds that a person has committed domestic violence, the court cannot give that person custody of any minor children unless they overcome the presumption that custody is not in the child(ren)’s best interests. This analysis occurs before comparing what the other parent did. For example, if the court finds that mom has committed domestic violence, the court must give full custody to dad unless and until mom shows that it is in the child’s best interests to spend time with mom. This is true even if dad has shortcomings as a parent.

Often, the person who has committed domestic violence will say something like this: “But wait! The other parent smokes marijuana!” or “The other parent is absentee! They’ve never attended a soccer game/school play/swim lesson! How can the court take my child away just because I gave the other parent a little slap?” The court can do this. If there is domestic violence the first step is making sure the child is safe — regardless of the degree of severity of the actual abuse. “Safe” to the court will mean placing the child with the non-abusive parent. This applies even if the non-abusive parent has flaws of their own. In other words, the flaws of a non-abusive parent aren’t typically considered unless and until an abusive parent has proven they are safe in a court of law.

Children Witnessing Abuse

Importantly, a child who witnesses abuse is also considered a victim of abuse. Witnessing abuse of a parent is abuse of a child. If this occurs, the road back to custody is long, difficult and expensive.

If the court finds a parent abusive, they might order that parent to have only limited, monitored visitation with the child. For example, a parent who commits domestic abuse can go from having a 50/50 custody schedule to only seeing their child for a few hours each Sunday. The court may also order a professional custody supervisor to monitor them. When the court orders this, it is typically paid for by the offending parent. This type of arrangement can last months or even years while the offending parent is completing say, anger management classes.

Getting Help

If your partner exhibits any of the behaviors listed herein, please call the police immediately. Make sure you get the name and contact information of the officers. Get a copy of the police report if applicable. Once you are safe, be sure to create a detailed record of the incidents in question and contact your attorney.

Having a attorney can help make the process easier to handle. At Davies Wegner Law, our experienced attorneys can guide you through the process. We will support you every step of the way. If you find yourself in a situation such as the ones we have described, call us at 310.481.0300. Our conversation is confidential. You may also email us on our discreet and confidential contact form.