An Overview of California Domestic Violence Laws

Domestic violence plays a significant role in California family law proceedings. Criminal defense attorney Vikas Bajaj provides an overview of domestic abuse laws for your convenience.

Violence or threats of violence against others are, generally, criminal acts that are punishable by law. The State of California has taken serious steps to protect victims of these crimes who happen to be closely related to the (alleged) attacker. Domestic violence laws in California substantially elevate the severity of the crime(s) and related punishment(s)s for those convicted.

Domestic violence allegations are taken very seriously in California. Charges are pursued by prosecutors who specialize in domestic violence litigation in dedicated prosecution units across the state. These special units were set up to provide additional protection for victims of domestic violence who may feel threatened by their attacker if they pursue legal recourse. As a result, when cases reach these dedicated units they often move forward, even if defendants recant, change their story, or express reservations in pressing charges.

What Constitutes Abuse in California?

In California, abuse can take many forms. Many may equate physical violence with abuse but, in reality, actions that constitute “abuse” for the purposes of the law are expansive. According to California law, abuse can include:

  •      Physically hurting or trying to hurt someone, either intentionally or recklessly;
  •      Sexual assault;
  •      Inflicting emotional, verbal, or psychological distress;
  •      Making someone fearful for their imminent or future safety;
  •      Harassing, stalking, or threatening someone; and/or
  •      Disturbing another’s peace or vandalizing their personal property.

Physically hurting or trying to hurt another person is a considerably broad definition. Courts in California have found restraining someone from free movement, pulling hair, shoving, and pushing to all fall under this umbrella. Physical abuse to a family pet has also been held to fall under the definition of “abuse” in California.

When Do Domestic Violence Laws Apply?

Domestic violence laws in California were specifically engineered to protect a certain class of individuals – those victims who are closely related to their attacker. Victims of domestic violence may include:

  •      A (former or current) spouse or domestic partner;
  •      A (former or current) significant other;
  •      A (former or current) co-habitant;
  •      Co-parent of a child; or
  •      Other closely related party (parent, child, sibling, in-law).

California Domestic Violence Laws

California has a number of laws specifically designed to protect victims of domestic violence. These laws, in many cases, have elements similar to “traditional” crimes but impose more severe punishments on those convicted.

Corporal Injury to a Spouse or Cohabitant

This is perhaps the most common, and most inclusive, domestic violence law in California. While its formal title is “Corporal Injury to a Spouse or Cohabitant,” the charges are most commonly referred to as domestic violence, domestic abuse, or spousal abuse. Under this law, it is illegal to inflict a ‘corporal injury’ against a spouse, cohabitant, or intimate partner which results in a traumatic condition. More plainly, it is illegal to hit or strike a (former or current) spouse, fiancé, co-habitant, or co-parent so violently as to cause visible injury of some sort. Swelling, lacerations, or bruising are all sufficient injuries.

        Penalties for violation of this law vary based on the history of the accused:

  • First offense. No more than 4 years in prison and/or a fine of up to $6,000. If probation is awarded the defendant may donate their fine – up to $5,000 – to a battered woman’s shelter and/or reimburse their victim for counseling, medical bills, or other costs resulting from the abuse.
  • Prior Convictions. If the accused has been convicted of a serious domestic violence offense (as listed in the statute) within the past 7 years, the punishment is increased to no more than 5 years in prison and/or a fine of up to $10,000.

Domestic Battery

Domestic Battery is similar to Corporal Injury of a Spouse of Cohabitant, but does not require a visible physical injuryInflicting violence or force against an intimate partner is a misdemeanor offense which carries a penalty of up to one year in jail and/or a fine of no more than $2,000.

Domestic Battery is a great example of how domestic violence laws elevate traditional crimes. Battery is traditionally punishable by up to 6 months in jail and/or a fine of $2,000. When the victim of a battery has a close relationship with the aggressor, however, the punishment is elevated.

Child Abuse, Child Endangerment, and Child Neglect

California also imposes strict laws designed to protect the interests, safety, and wellbeing of children.

  • Child AbuseIt is illegal to inflict corporal punishment or injury on a child.
  • Child Endangerment. It is illegal to allow a child under your care or custody to suffer harm or to endanger his or her safety.
  • Child NeglectIt is illegal to fail to provide necessities – such as food, clothing, shelter, and medical care – to a child under your care or custody.

Crimes Related to Domestic Violence Laws

California also boasts a number of laws that often accompany charges for domestic violence, spousal battery, or child abuse. Violation of these laws can increase punishments imposed on domestic violence offenders. Common charges that accompany domestic violence allegations include:

  • Elder AbuseIt is illegal to physically, emotionally, or psychologically abuse, endanger, or financially defraud a person aged 65 or older.
  • Criminal ThreatsIt is illegal to threaten serious harm to another with the intent to cause fear of physical safety.
  • Aggregated TrespassIt is illegal to make threats against another person which put them in reasonable fear for their safety, and subsequently enter their place of home or work to carry out those threats.
  • Revenge Porn. It is illegal to distribute sexual images of another with the intent to harm or cause emotional distress.

If You’ve Been Convicted of Domestic Violence

Punishments for violation of domestic violence laws vary, and often hinge on the specific facts of your case, including the seriousness of the injuries inflicted, as well as your criminal record. However, California courts take domestic violence allegations very seriously, and typically impose a minimum of 30 days in jail, regardless of prior history. Many courts also champion education and counseling, and often require successful completion of intensive domestic batterers courses.[12]

Note: if you are convicted of a crime of domestic violence you may force deportation. Domestic violence offenses are considered crimes of moral turpitude and impose severe punishments on those convicted.

If You’re a Victim of Domestic Violence

As a victim of domestic violence or abuse, you have many legal rights that you can explore to protect yourself and your loved ones. If you are fearful of the violent advances or behavior of a closely related person you may request the protection of a restraining order. California provides protection for victims of domestic violence at all stages of abuse.

  • Emergency Protective Order. Police called to the scene of a domestic disturbance, or by the request of a victim and in their discretion, contact a judge at any time of the day to request an ERO. The protective order, if granted, takes effect immediately and lasts for up to 7 days.
  • Temporary Restraining Order. Victims of domestic violence or abuse may petition the court for a TRO by providing evidence supporting their request. If granted, the TRO provides protection for 20-25 days.
  • Permanent Restraining Order. Victims of domestic violence or abuse may petition the court for a permanent restraining order by providing evidence supporting their request. Many times, permanent restraining orders are issues after criminal charges are completed. Despite their name, permanent restraining orders can only last for 3 years.
  • Criminal Protective Order. Courts may issue criminal protective orders for the duration of a criminal case.

Domestic violence laws in California discourage domestic abuse, offer protections to victims, and impose harsh penalties on those convicted. The seriousness of traditional crimes are often heightened if victims are closely related or intimate partners, and those convicted can face serious repercussions for their actions. If you have been the victim of domestic abuse, or if you believe you have been falsely accused of domestic violence, contact an experienced California criminal attorney today.

 

What To Expect In California Child Custody Cases

Most all divorcing parents would agree that custody, visitation, and support orders should all reflect the best interests of the children, and most all parents are also willing to make personal sacrifices for the benefit of their children. However, as the old saying goes, the devil is in the details, because many parents disagree as to what is “best” for the children and also the extent to which they must “sacrifice” for the good of the children.

In short, that is the complex nature of child custody disputes, because no matter how passionately the parents disagree over specific issues, there is usually general agreement on major principles, and this agreement, or at least this acquiescence, often serves as the foundation for a final resolution.

The Temporary Hearing

About two or three weeks after the divorce case starts, most California family law judges hold hearings to make interim orders for child custody, child support, and other important matters. Some of these orders are common to all cases, as most judges routinely direct parties to limit their communication with one another and preserve the status quo (e.g. keep the children in their current school or daycare facility). Verifiable abuse allegations obviously change these boilerplate orders to a considerable extent.

No discovery has taken place at this early stage, so judges must make decisions, and attorneys must make arguments, based on very little information. Some useful evidence at temporary hearings includes:

  • School Records: If the children’s grades slip when they are with Father or if they have discipline issues when they are with Mother, the court will probably take these things into consideration
  • Witness Testimony: A single teacher, counsellor, or priest is much more valuable than a parade of friends and other “character witnesses.” In fact, that latter technique often backfires, because if one parent has skeletons in the closet, the other parent probably knows about them.
  • Medical Records: Some red flags include serious physical injuries, substantial psychological issues, or unstable “doctor shopping.”

There is a very strong joint custody presumption in California law, so absent serious and meritorious abuse allegations, sole custody is probably not an option. If there are concerns, judges often order parents to attend counselling or impose other restrictions.

730 Evaluation

Depending on the circumstances, the judge may order what is known as a “730 evaluation.” A 730 evaluation derives its name from California Evidence Code § 730. The court will appoint a “child custody evaluator,” as defined by California Family Code § 3110. The purpose of this evaluation is for the court obtain information relevant to a child custody determination. These evaluations are routinely ordered in the event that parents challenge custody on the basis of abuse, drug use, or any other serious allegation.

If the court does order an evaluation and you are self-represented (“pro-per”), you may want to consider hiring an attorney throughout the process. The court is likely to put much weight into the evaluator’s report. As such, you would be wise to have an attorney representing your interests throughout the process.

Mediation

Prior to a child custody hearing, you are required to attend custody mediation in California. Mediation often has some tangible benefits:

  • Civility: During mediation, the parties are in separate rooms for nearly the entire session, so there is much less emotional stress in informal mediation meetings than in showdown trials.
  • Control: In a similar vein, the parties, instead of a judge or jury, control the terms of the settlement agreement, a dynamic that often increases voluntary compliance in the months and years to come.
  • Cost: Mediation saves time by cutting the case short, and in litigation, time is money.

Mediation is not always successful and is not even always a good idea, but it is usually a worthwhile endeavor, even if one side is less than fully committed to the process. 

Modifying Family Law Orders In California

Most civil disputes end when the judge’s gavel falls. Family law cases do not really “end” at this point, although they may lie dormant for a period of months or even years. Almost inevitably, because of a job change, relocation, remarriage, or other life event, the old orders become either somewhat cumbersome or totally irrelevant. When change happens, many parents choose to make informal “side agreements” with one another rather than officially change the court orders. While it is normally a good thing for parents to work out disputes on their own rather than filing court papers, these “side agreements” are totally unenforceable, and if one parent unilaterally decides to back out of the understanding, the other parent has no recourse whatsoever.

The bottom line is that divorce modification is nearly always a necessary part of the overall process. What do parents need to show in court to change the orders, and what kinds of changes are the judges likely to make?

Custody/Visitation Modification

Under California law, family law judges have the power to create any custody or visitation order that is “necessary or proper.” In practical terms to modify a prior order, the moving party must show changed circumstances that impact the best interests of the children.

Movants often base their actions on remarriage, which is undeniably a changed circumstance. Although the kids in The Brady Bunch always got along swimmingly, life does not always imitate art, and new step-siblings combined with a new living environment is often a stressful situation, especially for certain children. However, remarriage in and of itself may not be sufficient basis to modify prior custody orders. As divorce lawyer Hossein Berenji explained, “Father may not like Mother’s new husband and may even rightfully believe that he is a bad influence on the children, but unless Father has evidence to prove that the children’s new environment is detrimental to their well-being or there are other developments aside from the remarriage, his motion to modify will likely fail.”

Removal or onset of disability is also a changed circumstance, and unlike remarriage, it is likely to have a substantial effect on the best interests of the children. If Mother overcomes a substance abuse problem, the court is likely to either expand visitation or at least remove some contact conditions, like substance abuse counselling. Conversely, if Father is diagnosed with a long-term debilitating illness, it is reasonable to question his physical parenting abilities.

Move-Aways

One of the reasons divorce orders need to be modified so frequently is because many people relocate every few years, usually for job reasons but sometimes for legitimate personal reasons, like being closer (or further away) from family members. Especially in Southern California, almost any move significantly impacts a family’s weekly schedule, even if it’s technically a local move from one side of town to the other side.

In the rare sole custody cases, In Re Brown and Yana (2004) usually controls. The noncustodial parent has the burden of proof to show that the move would be detrimental to the child (as opposed to detrimental to the parent) before the judge even holds an evidentiary hearing. In other words, unless noncustodial parents show that the moves would be dangerous to the children, they probably cannot stop them.

According to In Re Marriage of Seagondollar (2006), the court basically makes the opposite presumption in joint custody cases. Instead of assuming that the parent has a good reason for the proposed move, the judge assumes that the parent does not have any such reason, and to convince the court otherwise, the movant must prevail in an evidentiary hearing and hope for a favorable DCFS report.

Child Support Modification

Much like custody orders, a court may modify child support orders “at any time as the court deems necessary.” That usually means either a change in the guideline amount — and the guidelines have been amended a number of times in the last twenty-five years — or changed circumstances. Most all motions to modify use the latter, and changed circumstances can include:

  • Permanent or long-term income increase or decrease (a streamlined procedure may be available under Family Code 3660),
  • Passage of time (older children are generally more expensive to raise than younger ones), and
  • Change in parenting time patterns.

Child support modifications must be made in good faith, so an obligor spouse cannot quit high-paying jobs to avoid paying child support.

About the Author: Hossein Berenji is the founder and owner of Berenji & Associates, a Los Angeles based family law firm. Mr. Berenji and his team have over 25 years of combined experience. If you would like further information, please contact Mr. Berenji by visiting his website.

How Can Premarital Agreements Promote Post-Divorce Harmony?

Many people look at the bitter Uma Thurman/Arpad Busson separation in New York, and think that there must be a better way. In many cases, that “better way” is a premarital agreement.

During their protracted custody trial, the two sides trading outlandish allegations almost literally in front of their 4-year-old daughter. During his testimony, Mr. Busson denied that he was “addicted to prostitutes” and that he had threatened ex-fiance Elle Macpherson so badly that she eventually wore a wire to record her conversations. Earlier, when Ms. Thurman took the stand, lawyers accused her of mixing alcohol with prescription medications. In the end, during a closed-door mediation session, the couple resolved most of their issues.

A premarital agreement probably could have short-circuited most or all of the court case, leaving the parties firmly in control of their own destinies.

Making Premarital Agreements

Under the old piecemeal laws, only wealthy couples who could afford expensive attorneys bothered with premarital agreements, because the results were so inconsistent from state to state. Now, California and almost all other states follow the Uniform Premarital and Marital Agreements Act. Under this law, premarital agreements may cover almost any subject other than child custody and child support. As a result, many people use these contracts to:

  • Classify property as either community or separate property,
  • Limit or eliminate spousal support payments, and
  • Make provisions regarding succession and inheritance matters.

So, in addition to clarifying issues in the unlikely event of a divorce and thus conserving both financial resources and emotional capital, premarital agreements help put relationships on solid footing. Money is one of the leading causes of marital stress, and because they enable parties to make financial decisions well in advance, premarital agreements completely remove this destabilizing element from the marriage. The same can be said for stepchildren, since by making provisions for inheritance and succession, premarital agreements help avoid expensive and time-consuming fights in probate court that no one truly wants.

There is a strong legal preference in California and elsewhere to uphold spousal agreements, and so premarital contracts are usually deemed valid unless there is evidence of:

  • Involuntariness: Agreements are voluntary if both spouses laid all their financial cards on the table and there was no excessive coercion, as “sign or else” ultimatums may even be okay in some circumstances.
  • Unconscionable: There is a difference between “uneven” and “unconscionable,” and the precise definition of these terms is case specific. Additionally, the pact must be unconscionable when it was made and not unconscionable at the time it is challenged, a difference that’s illustrated below.

Typically, spousal agreements contain general severability clauses, so if certain parts are invalidated, the remainder of the agreement is still in force.

How Premarital Agreements Work

Another celebrity breakup, this one from Los Angeles, illustrates how premarital agreements work in family court.

When Frank and Jamie McCourt bought the Los Angeles Dodgers from Fox in 2004, the baseball team had perennially underachieved for over a decade, driving down fan interest and the team’s monetary value. In 2011, the team declared bankruptcy; reportedly, the McCourts would have been unable to make payroll without emergency assistance. At the same time, the McCourts were divorcing, and Ms. McCourt gave up her half of the team in exchange for about $180 million in property and cash, since the franchise was basically worthless. About a year later, after the team had rebounded both athletically and financially, Mr. McCourt sold the Dodgers to the Guggenheim Group for $2.15 billion.

Ms. McCourt sued to overturn the property agreement,claiming that Mr. McCourt concealed important financial information and that the pact left her about $900 million away from a 50-50 division. Eventually, an appeals court ruled that the agreement was not involuntary, since Mr. McCourt had furnished tens of thousands of pages of documents and as a former co-owner, Ms. McCourt could have easily verified the numbers elsewhere. Moreover, according to the court, the agreement was not unconscionable when it was made, because “Jamie simply chose the security of a guaranteed $131 million payment, plus more than $50 million in real and personal property, over the uncertainty and risk presented by the valuation and sale of the Dodger assets.”
The court also ordered Ms. McCourt to pay her ex-husband’s $1.9 million legal bill.

9 Legal Tips For When Going Through a Divorce

Whenever you are going through divorce proceedings, it can be really helpful if you know a few legal tips. These kinds of tips can make the transition to single life much easier.

Divorce law can be extremely complicated. To help you, we put together a list of 9 tips to follow during a divorce. If you need more information, you should consider calling an attorney that handles divorce in your area.

  1. Make sure your spouse isn’t attempting to sell-off any assets during the divorce proceedings. If they do, you may be entitled to half of the proceeds.
  2. Similarly, you do not want to sell off any of your assets during a divorce. This could end up really making the whole divorce proceedings really complicated. And the money you gain from selling off your assets will have to be split with your wife.
  3. While a lawyer is not necessary for a divorce, it may be a good idea to hire one. A lawyer will be able to help you make the whole process of divorce go much smoother, so you should have no trouble at all going through a divorce when you hire a lawyer.
  4. It is always a better idea to hire a divorce lawyer. These kinds of lawyers will specialize in divorce law. So you can be sure that they know every kind of legal detail to pay attention to. They can help you with child custody among other things.
  5. Speaking of child custody, a lot of factors can affect who gets custody of the children. Any history of drugs or abuse can severely decrease your chances of getting custody.
  6. Try to maintain clear lines of communication with your spouse. You will need to do so to ensure that everything goes smoothly during your divorce. Not talking to your spouse just means a longer divorce process and can be detrimental to the children.
  7. Do not get married while you are going through a divorce. Any kind of the third party during a divorce will make the whole process of the divorce go on for much longer. You should wait until after the divorce has finished getting married.
  8. Paying alimony can be a smart financial move. Alimony is tax deductible. And if you agree to pay alimony you are actually making the whole process of divorce go much easier. So it may be a good idea to negotiate alimony terms with your spouse or their lawyer.
  9. Remember that child support is for your child and not your spouse. Do not try to punish your spouse by withholding child support.

5 Tips for Anyone That Wants to Know About Child Support

If you have kids and are going through a divorce, then child support will be an integral part of the divorce proceedings. It can also be a costly one for the parent that is ordered to pay child support. That is because children are expensive to support. So if you want to ensure that you are not going to be overpaying your child support, you will need to know all the details about it first.

There are a few tips that you should know about if you are going to be paying child support. So be sure to keep these various tips in mind, especially if you are currently paying child support to your ex-spouse.

  1. If you have another child, you may end up lowering your child support obligations for your previous child. The number of children that you have is an important factor that the courts may consider to determine the amount that you have to pay for monthly child support.
  2. You can also decrease your child support obligations if you spend more time with your child. If you are co-parenting your child with your ex-spouse, the amount of time that each of you spends with your children may affect child support obligations. If you care for your child more, such as by providing them with shelter and food, you could end up decreasing the amount you will have to pay for child support.
  3. You will not be paying child support for the entire time that your child is alive. In California, child support stops when the child reaches 18 years of age, unless they are still in high school. If they child is still in high school, then it terminates when the child turns 19 or graduates, whichever comes first.
  4. You should always pay your monthly obligations for child support. You may end up going through a lot of consequences if you miss child support payments. Depending on where you live, you could have your driver’s license revoked, or even have your passport revoked as well. So you should always try to meet your child support payments on time.
  5. You can file for a decrease in your child support payments if your circumstances have changed. For example, if you have lost your job or if you are going through bankruptcy. You can petition the court to lower the amount you have to pay for monthly child support.

In general, all of these tips are applicable for any divorce case. Each state may have different specifics when it comes to child support laws, however, they are mostly following the same idea. So you should be able to use these child support tips wherever you are.

Following these different kinds of tips, you may actually be able to potentially lower your child support obligations. So it can be quite helpful if you take these different tips to heart. You could actually negotiate a lower child support payment if you follow these different kinds of tips.

Resources:

What are The Different Factors That Affect Child Custody?

The legalities of child custody in divorce law are pretty complicated. A lot of factors can determine who gets custody of the child, or even whether or not if either parent will obtain custody of the child.

Child custody laws also determine the type of visitations that are granted to either parent. So, if you have got children, and are going through a divorce with your spouse, you will need to familiarize yourself with the various details of child custody laws. There are also factors that will be used by the courts to determine who will receive custody of the child.

One of the factors that the courts will look at is the health of the parent. If a parent has got a debilitating physical illness, then they are less likely to receive custody of their children. So if you have got some kind of physical illness that could prevent you from taking care of your child, you are most likely not getting custody of them. In the same vein, a parent with an unhealthy habit, such as smoking, will also not receive custody of their children. So if you are a smoker, and want custody of your children, you may want to give up smoking.

Those are not the only factors in determining who gets custody of the children during a divorce. The divorce courts will usually try to give custody of the child based on the best interests of the children standard. So they will also take into consideration the closeness of the relationship, or the emotional attachment of certain children with a specific parent. So if a child or children are closer to one parent, and if they have expressed a desire to be with that parent, then the court will most likely give child custody to that particular parent.

The financial capabilities of a parent will also be another factor in determining child custody. The more financially stable a parent is, the more likely they are to receive custody of the children during a divorce. A lot of factors are used to determine financial capabilities, such as assets, debts, and current income. So it is important that you disclose all of your financial details if you want to obtain the custody of your children during a divorce. The ability of the parent to provide for the basic needs of the child will be taken into consideration by the courts.

Learning all of these factors for determining child custody could be extremely useful. For example, if you want to get custody of your children, you may be able to use these different kinds of factors in your favor. You could also use these different kinds of factors to check who is more likely to receive custody of their children after the divorce. If you want to know more details about child custody in divorce law, you should speak to a family lawyer. They will be able to help you iron out all of the legalities when it comes to child custody and support in the divorce.

How to Find a Good Divorce Lawyer

If you are going through a divorce, it may be a good idea to hire a divorce lawyer. Unlike other attorneys, they will instead specialize in divorce and family law. So they will know the ins and outs of the legalities of divorce. With their help, you can speed up the divorce process and maybe achieve a better deal when it comes to child support or alimony. As such, it can be a really good idea to hire one. However, it can also be difficult to find one in the first place. Fortunately, there is this guide for finding a competent divorce lawyer.

1. Hire an Attorney That Only Handles Family Law

A lawyer that is experienced in family law should be your first choice. You should not look into a lawyer that handles real estate, or even a criminal defense attorney. Always go for a family law lawyer. By doing so, you will get their knowledge and expertise when it comes to divorce law. Divorce law is extremely complicated, so it is best to go to an expert on the subject, and not one that is an expert on real estate law. A great place to start is the State Bar website of the state you live in. For example, a California resident would visit here.

2. Shop Around – Meet with Several Attorneys

Shop around for a competent divorce lawyer. You should not settle on the first one that you find. It can be a good idea to set up meetings with at least two or three other lawyers, especially if you want to find a competent one. You can canvas different kinds of lawyers, to get a sense of their different skill sets. By interviewing many divorce lawyers, you may be able to select the best one out of the bunch. Many family attorneys now offer a free consultation. Use this time to essentially interview different attorneys. Discuss your case and get feedback. You shouldn’t always go with the attorney that tells you what you want to hear, but rather what you need to hear.

3. Ask Friends For Recommendations

And as always, word of mouth can actually point you to the right divorce lawyer. You can ask around for anyone that can recommend a good lawyer that handles divorce cases. You can try asking someone you know that has gone through a divorce. They may be able to suggest someone that you can hire to handle your own divorce case. You can increase your chances of finding the attorney by simply searching for one based on word of mouth.

By following these guidelines, you should be able to hire a very reliable and competent divorce lawyer. If you want to go through the least amount of trouble when you are undergoing a divorce, you should look into hiring one. A divorce lawyer’s services could be invaluable whenever you are going through a divorce. And you may be able actually to go through a pain-free divorce if you hire the right kind of lawyer to handle your case. Do not hesitate to contact the services of a divorce lawyer if you find one that you can trust, you will be making a very good decision if you hire them.