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.
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.
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.
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.