Posted by: Gerald A. Maggio, Esq.
If you have been a victim of domestic violence, you have a right to look to the Court for protection. There are several different types of restraining orders that can provide domestic violence victims with this kind of protection.
Being a victim of domestic violence can be a stressful and traumatic ordeal. However, there are legal ways to ease the stress and trauma by ensuring that further harm does not come to the victim. A domestic violence restraining order is a court order that protects a person from being abused or harmed by another person.
To qualify for a Domestic Violence Restraining Order you must have a relationship with the person you are seeking the order against. This relationship must be one of the following:
- Married Couples (sometime known as Spousal Abuse)
- Couples who cohabit
- Persons who have a child or children in common
- Persons currently in a dating relationship or who were in a former dating relationship
- Persons who were formerly married to each other
In California, the victims of domestic violence can obtain three different types of restraining orders: an Emergency Protective Order, a Domestic Violence Temporary Restraining Order, or a Criminal Protective Order.
An Emergency Protective Order (EPO) is issued by law enforcement and is only valid for a short amount of time, usually less than one week. This type of restraining order is particularly useful for victims of domestic violence, as it provides them with immediate protection after an incident has occurred. These types of restraining orders usually arise when the police have responded to a domestic violence call.
A Domestic Violence Temporary Restraining Order (TRO) is another short term restraining order valid for no more than 21 days. While these restraining orders only cover a short period of time, they can be made permanent for 1 to 3 years. The purpose of a TRO is to provide the victim with protection until a hearing can be held and a permanent restraining order can be issued.
A Criminal Protective Order can be obtained through the District Attorney’s office and is issued in active domestic violence criminal cases. Under this kind of restraining order, the individual the order is issued against is not to have any contact with the victim.
Each type of restraining order must be court-ordered, so you will have to go to court to prove your domestic violence case. It is important to have an attorney who can represent your best interests. An experienced family law attorney will ensure that all of the proper documents have been filed, will be able to handle any questions a judge might have, and will help you deal with any unusual circumstances that arise.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Sadly, many children are used as pawns in divorce proceedings. Emotional abuse can wreak havoc on them.
Caught up in the throes of divorce, some people don’t stop to think that they may be using their children as emotional pawns; taking their own anger and hurt out on the kids. This is a difficult position for a child to be in; emotionally and psychologically. Those who would abuse a child may find Child Protective services stepping into the picture.
A child is considered to be the victim of emotional/psychological abuse when they are subjected to acts/omissions on the part of the parents, or other responsible caretakers, that caused or could cause serious mental problems, emotional difficulties, behavioral problems or cognitive disorder. Even if there is no harm to a child’s condition or behavior, Child Protective services may still step in.
Unfortunately, there are many types of punishment divorcing parents hand out that may range from the extreme and downright bizarre to less severe actions such as rejecting the child or constantly using them as a scapegoat. The parent is considered to be guilty of emotional abuse if they are unable or unwilling to respond to their child’s needs or rejects them. They are guilty of psychological abuse if the child is witness to spousal abuse, if the child is told they can take drugs or alcohol, or if the parent(s) refuse or fail to offer proper psychological care.
Emotional and psychological abuse takes on other forms as well, such as economic power over another or dependence dominance. In cases that involve economic power or dominance, the kids are often used to wield power over the other spouse; to control them. Instead of directing their anger at the other spouse, the child is the target of abuse in order to cause the other partner severe distress.
The abuse may take on many forms such as yelling, screaming, shouting, threatening gestures, actions or looks. No matter what it takes to frighten the other spouse, the abuser will do it and use a child for the primary target to get at the spouse. Some abusers have been known to utter threats of taking the child without their knowledge, harming the child, or even making insinuations they would commit suicide.
If you are in an abusive relationship, you do not have to live in fear. There is help available by working with a skilled and compassionate attorney who is familiar with situations like this. Domestic violence must be dealt with promptly and decisively. Do not wait to get help.
If you live in California, you need to understand that domestic violence has a direct impact on child custody disputes. If you are facing a divorce and have been accused of domestic abuse/violence, it is critically important that you do everything possible to prevent a conviction if you wish to retain custody or visitation rights with your children.
Speak to a dedicated attorney who represents men and women who have been victimized by or who have been accused of domestic violence in marriage, domestic partnerships, dating relationships and same-sex partnerships. In trying times, a strong, aggressive advocate is the best ally for individuals involved in domestic violence cases.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
If you don’t think coercion plays a role in domestic violence in California, think again. This tactic may cost you your visitation rights with the children.
While many people work hard at their jobs and their relationships with significant others and get ahead on their own merits, there are those who attempt to get ahead by bullying, intimidating and coercing others. Some people may choose to live with this, others ignore it, some tolerate it, and others bear the brunt of it.
Typically, when coercion enters the picture in a personal relationship, it isn’t something that improves communication between the parties. It may in fact find one of the parties charged with criminal threatening and on their way to court and perhaps jail. A skilled Orange County divorce attorney will outline this for you if you have been charged with domestic violence.
Coercion is defined as forcing someone to act in an involuntary manner by threatening the person with bodily harm if they do not comply. What this means is that if the person feels compelled to act in a certain way out of fear, or because they are afraid of being harmed or hurt, that person may choose to file charges against the person trying to coerce them with threats.
Often coercion and criminal intimidation is used in a variety of settings from work to home and from school to social events. It seems to know no boundaries as the aggressor is intent on getting their way at any cost. This kind of violence is more common than we would like to think, particularly in situations where there is a marriage breakdown. This is one of the major reasons that speaking to a seasoned Orange County divorce attorney makes sense. The attorney is able to offer you a variety of options at your disposal to alleviate this situation.
Most often the aggressor is the male and rather than try to calmly and fairly settle a dispute, they use coercion to accomplish their goals. They intentionally make others do what they say by telling them if they don’t, they’ll “pay” for it; meaning they’ll be beaten or forced into doing something else. This type of conduct may spill over to other family members, most notably the children.
If the person uttering the threats and causing serious harm to others is charged, they may face the possibility of misdemeanor or felony charges. In the more serious cases, there may be fines, jail time or probation. While the perpetrator may think it’s no one’s business but their own what they choose to do and how they choose to act, if they are convicted of this type of crime, it will have a direct impact on visitation rights with their children. If you’re in the midst of a divorce proceeding in California, you will need to consult with your Orange County divorce attorney to find out what your options are under the circumstances.
Domestic violence, which includes coercion, has a direct impact on child custody disputes. In fact, California Family Code, Section 3044 states that: “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.”
Put another way, if you are facing a divorce and have been accused of domestic violence or coercion, it is vitally important that you do everything possible to prevent a conviction if you wish to retain custody or visitation rights with your children.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
Posted by: admin
Domestic violence means to hit, kick, scare, throw objects, pull hair, push, follow, harass, sexually assault, or threaten to do any of these things. It can also include other actions that make someone afraid of being hurt. Domestic violence can be spoken, written or physical.
Posted by: admin
The Court will consider your case as a domestic violence case if, in the past 5 years,
1. A parent was convicted of domestic violence against the other parent, or
2. Any court has decided that one parent committed domestic violence against the other parent of the children (which means that a court’s previous issuance of a restraining order in your case highly relevant in your custody case).
If the court decides that there was domestic violence in the past five years against a parent or the children, the judge must follow special rules to decide custody of the children.
In particular, pursuant to Family Code Section 3044, if the Court makes such a finding there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. Such legal presumption can be overcome and custody awarded to the parent who committed the domestic violence if it is in the best interests of the child, the perpetrator has completed a 52-week batterer’s program, not committed any other domestic violence, and has complied with all other orders of the Court.
The complete text of California Family Code Section 3044 is as follows:
(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 rebutable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic vtiolence is detrimental to the best interest of the child, pursuant to Section 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. 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.
Posted by: admin
If you have been a victim of domestic violence, you can seek orders from the Court to protect you from such violence or threats of violence at the hands of a family member or someone you date or live with, by filing a Temporary Restraining Order with the Court.
You can generally obtain an emergency Temporary Restraining Order the same day as requested. Such orders can order the perpetrator of the domestic violence to stay 100 yards away from you, your home, your vehicle and your place of employment. The order can also order the perpetrator to move out of the house temporarily and to not have any contact or communications with you of any kind. Finally, the Court can make temporary orders regarding child custody and visitation of the parties’ children, and payment of bills and child support under the Temporary Restraining Order.
If the Court grants the request for a Temporary Restraining Order, the Court will schedule an Order to Show Cause hearing within 21 days thereafter, and the temporary restraining order will only be effective until the next hearing. The purpose of the Order to Show Cause hearing is to give the perpetrator the right to respond to the allegations and for the Court to determine where the restraining order should be continued for up to five years.
The restrained person must be personally served with a certified copy of the emergency Temporary Restraining Order granted by the Court which provides notice of the Order to Show Cause hearing.
In addition, if you called 911 at the time of the domestic violence incident and the perpetrator was arrested, that person (who can be your husband, wife, boyfriend or girlfriend) might be simultaneously prosecuted for domestic violence criminal charges independent of your restraining order proceeding in Family Court. This should not stop you from seeking a Family Law restraining order.
Posted by: admin
CALIFORNIA’S ‘SAFE AT HOME’ CONFIDENTIAL ADDRESS PROGRAM
On January 1, 2007, a confidential mail forwarding program administered by the California Secretary of State’s Office called “Safe At Home” took effect to protect victims of domestic violence.
The program allows such victims to escape abusive spouses and partners by providing a level of anonymity regarding their home address.
The Safe At Home program gives the victim an official, substitute address to use in place of their home address. All first-class mail, legal documents and certified mail are received by the offices of the Secretary of State and forwarded onto the victim, thereby keeping your residential address confidential.
In addition, you are able to register as a confidential voter and suppress your DMV records, thereby helping to insure that your home address will not be made public.
For most people, this mail forwarding service is free. Professionals, including doctors, are only required to pay a small fee for this service.
If you want to enroll in the Safe At Home program, you can start by contacting the Safe At Home office directly at 877.322.5227 or by locating a Safe At Home enrolling agency in your area at http://www.safeathome.org/safe-at-home-agencies.htm.
