Do’s And Don’ts of Dealing With Abused Children Of Divorced Parents

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmMore than often, children end up becoming victims of divorce. And sometimes, they are the reason why parents get divorced. The latter is common during child abuse cases. Child abuse includes physical, psychological and sexual harm inflicted on the child. Child neglect and abuse is a major ground for divorce and most states including California award custody to the other parent without much pressure. However, once the child goes back to the caregiver, there are certain do’s and don’ts to follow while dealing with them.

Do’s

First and foremost, get your child(ren) individual therapist with a therapist licensed in your state.

Make some organizational planning and re-structuring within the house without making it emotional. Involve the children while you’re making the plans to make them feel that everything is normal around them. Ask for votes and opinions and make them participate as much as you can. But don’t put too much responsibility on them.

Abused children show signs of depression and sadness but some kids can act in the opposite way. If they show unruly behavior, teach them how to behave and this can be done in a fun and creative manner.

From time to time, talk to them about the changes in the house and why the changes are taking place. It will increase communication and help foster a positive relation between you and your children.

Don’ts

Try to avoid any sense of fear or anger around them because it might lead to depression. Even if they are old enough to understand such behavior, any negative emotion can have bad effects on their psyche.

Don’t try to go into a new relationship when your kids are still trying to cope up with the situation. It becomes very confusing for them to adjust around new people especially when they have gone through a bad experience.

Avoid any talk about divorce or the abusive parent in front of your kids. Don’t even mention their name.

Don’t make complicated and philosophical talks with your kids. Talk to them as any other parent would with their children.

Conclusion

Children are tough to deal with when parents undergo a divorce. Abused kids even more because of the trauma they go through. While dealing with such kids, it’s better to keep things as normal as possible. Create activities and allow your kids to become a part of it. Avoid negative talks or anything that has to do with either the divorce or the abusive parent.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Can Spouses Convicted Of Domestic Violence Get Alimony?

Posted by: Gerald A. Maggio, Esq.

restraining orders Orange County; The Maggio Law FirmDomestic violence is an unpleasant subject and has plagued the lives of many couples. The number of domestic violence cases are more than that which get reported every year. Domestic violence is often one of the grounds on which one spouse seeks divorce. In California, domestic violence can mean many different things and you should carefully read through the California law before proceeding with the case.

Domestic violence in California

California is a “no-fault” state but in certain cases like domestic violence fault is a factor. In California, fault is thoroughly examined when spousal supports are determined in a domestic violence case.

California law states that after divorce the higher earner must support the lower earner. But in domestic violence cases, this law can be overlooked. For example, if domestic violence charges are against a spouse who earns lower then, after divorce, the other spouse need to provide spousal support.

California Family Code section 4323 clearly states that spousal support won’t be given if a spouse is charged and found guilty of domestic violence. In a standard divorce, the low-earner receives spousal support unless he/she is charged with domestic violence. If he/she is found guilty then any monetary compensation or other help will get terminated. One issue is that the marriage must have lasted for at least five years after which the rule stands true. The law is found in some of the states and provides a helping hand to the victims of domestic violence.

Examination by courts

Any domestic violence that has been documented will be examined thoroughly by trial courts. The decision will determine whether spousal support will be provided or not. Trial courts will also consider emotional distress, history of convictions and other problems which might be useful.

In California, domestic violence includes a wide range of problems. One of them is one spouse disrupting the peace of another. Domestic violence in other states might be only about physical assaults but not in California. Domestic violence is a serious offence in California and even the lightest change in behavior can lead to domestic violence.

False allegations

Can domestic violence be misused by someone? This question can be best answered by a law expert or one who has had extensive experience in dealing with such issues. The judge needs to look at all the evidence provided and after carefully going through the evidence, it will take its decision.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Divorcing A Physically Abusive Spouse

Posted by: Gerald A. Maggio, Esq.

domestic violence attorneys Orange County; The Maggio Law FirmObtaining a divorce from a physically abusive spouse can be an extremely difficult affair for those on the receiving end. You need courage, sacrifice, and strong legal representation. It also needs a willing mind to navigate through challenging circumstances for a better life both for the spouse and children. It is extremely difficult to divorce an abusive husband in marriages that have lasted a long time. This is because the husband generally in these kinds of cases control the household finances.

Not a simple process

A few people will advise you to simply walk away from a life of hell. Do not listen to them. Your pain will be decipherable to only those who themselves have felt the pain. At the Maggio Law Firm, we know exactly what you are going through. We have in-depth knowledge of such cases and have successfully concluded the same in our clients’ favor.

Defining abuse under California law

Abuse is a broad term. It is inclusive of attempting to cause or intentionally causing bodily injury, placing persons in a reasonable apprehension of any imminent or immediate mortal bodily injury or engaging in any behavior as described by section 6320 of the Family Code. This code includes molesting, striking, threatening, battering, telephoning, attacking, stalking, sexually assaulting and harassing as per Section 653m of Penal Code and destruction of personal property, contacting either indirectly or directly, through mail or any other medium, or coming within a particular distance, or disturbing the other party’s peace and as per the court’s discretion, other named household or family members.

Situational domestic violence

Family law lawyers and judges use the situational domestic violence term when they refer to a domestic violence which is a component of a one off incident and not pattern of abuse. It is frequently linked with external factors which result in an usually non-abusive husband to behave badly with his children or his wife. A number of circumstances could result in such an outcome. However, in a majority of cases, these are caused by wife’s infidelity, when husband’s infidelity has been discovered, or the husband addicted to alcohol or drugs or even the decision of the wife to leave husband and to file for divorce which subsequently angers the husband.

Handling situational domestic violence

These kinds of problems are best handled by applying for domestic violence restraining order. The wife, with her lawyer’s assistance, requests the court for both permanent and temporary restraining orders.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Understanding Supervised Visitation

Posted by: Gerald A. Maggio, Esq.

child custody attorneys in Orange CountyThe State of California stipulates that all child custody related arrangements with reference to parental divorce cases would incorporate the best interest of the child. As per the specific situation, the court of law will decide a settlement which would imply that either both or one of the parents will be granted the shared or single custody of the child respectively. In addition to the child custody, the judge may decide the visitation arrangements for the child which would order the child to have contact with one parent only in the presence of neutral third party. The aforementioned arrangement is termed as supervised visitation. In such a settlement, the court has the right to specify the duration and time of visitation. In some cases, the judge might further allot the third party supervision to specific persons and list out the places where the visitation can take place.

When does a court grant supervised visitation?

There are several cases wherein a court will require the parent to carry out supervised visitation with their child, such as:

  • In cases where a parent would like to address some specific issues with the child
  • In order to recreate a bonding with a long absent parent
  • To facilitate an introduction between the parent and child in cases wherein there was a nonexistent relationship between the two.
  • In cases wherein there is a history of domestic violence or physical abuse
  • In cases where there is a threat of parental abduction

Who is a supervised visitation provider?

A supervised visitation provider can be anyone ranging from a neutral family member, a friend or even a professional. It is the provider’s duty to oversee all the visitations cautiously and ensure that all the separate parties involved in the process are kept safe and free of any harm. The provider is obliged to stay around during all the visits and also keep a close track of what is being discussed and how the child is responding to it. Since it is his job to ensure everything goes on smoothly for the child, the provider is supposed to report the parent’s misbehavior or child abuse to the court. He further has the right to interrupt or even put an end to the visit if required.

The supervised visitation providers may be broadly classified into two categories, namely non-professional and professional providers. While non-professional providers are somewhat related to your family or friend circle and are not paid, the professional providers charge a fee for their services.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

The Impact Of Domestic Violence On Child Custody Cases

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange County attorneys; The Maggio Law FirmThe child custody and visitation laws are separately dealt with in divorce lawsuits involving child abuse or domestic violence. It is the duty of the judge to establish whether there is a genuine case of any kind of physical or mental abuse or not. If yes, the court of law must follow specific rules and guidelines to reach a final verdict in terms of custody and visitation rights of the parents involved.

What is regarded as domestic violence by the State of California? 

Many times, the victims of domestic abuse end up thinking that they have not been subjected to any violence unless it is causing any physical harm to them. However, the State of California defines the conditions wherein an act would be considered domestic violence by the court of law such as:

  • Subjecting the victim to intentional bodily harm or injury
  • Sexual assault
  • Scaring the victim to have a constant fear of being physically harmed by the perpetrator
  • Other actions that might drive a court to issue a restraining order against the acting individual such as physical assault, harassment, stalking or unwanted phone calls

How the court of law decides custody and visitation in cases of domestic violence?

While deciding upon the child custody and visitation rights of a parent, the court is obliged to ensure the best interests of the child at all costs. In the event of a domestic violence being involved in a divorce lawsuit, the judge has the right to limit or block contacts of the child with the abusive parent. Evidence of domestic violence reported by law enforcement, social welfare agencies, child protective services and medical facilities would be acceptable as substantial proof of abuse and will be held against the defendant.

Since the court is obliged to ensure the child’s best interests at all times, exposing him to any kind of domestic violence will be against the policy of his protection. In such cases, the judge might either order supervised visitation for the abusive parent or completely bar overnight visits. In case a protective order has been issued, the judge might stipulate pre determined conditions for the visitation or even entirely deny it.  In cases involving extreme abuse, the court may go to the lengths of ordering a permanent and complete termination of the parental rights of the abusive individual.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Child Custody in Domestic Violence Cases

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThe definition of domestic abuse is not limited to physical harm; it consists of sexual assault, harassment, threats, stalking, and physical injury. Violence can continue and, in many cases, increase upon separation. Domestic violence allegations play a significant role in child custody hearings. The “moral presumption” in such cases does not allow the abuser to become the primary guardian of the child/children. However, the legal presumption is open to examining the case put forth by both parents.

The top priority of California’s legislature in custody cases is the health, safety, and welfare of the children. When deciding custody the court examines evidence which substantiates the incidence of abuse in the relationship, such as police records, reports from child protective services, or other court orders. If the allegations are proven to be true, then the abusive parent is not awarded either sole or joint custody by means of a “rebuttal presumption” applied by the court pursuant to Family Code section 3044.

The presumption can be overturned if the abusive parent (perpetrator) has successfully completed a batterer’s program, is on probation or parole, has not committed further acts of violence, or proves the children are best-taken care of under them. The victim of abuse can seek a temporary restraining order citing domestic abuse affecting the partner’s custody and visitation rights.

When the children have been subjected to extreme neglect or cruelty, the court has the right to terminate the physical and legal custody of the abusive parent. In such cases, the judgment is permanent and cannot be overturned. The parent loses all rights to their children.

Fabrications are quite common in domestic violence and child custody cases. In the latter, a parent may allege abuse to tip the scales in their favor and gain guardianship of the child. If the accused parent does not contest these allegations then the court will deem them true. It becomes even more difficult if the accused has a history of domestic violence. Therefore, the accused may lose joint child custody or any kind of contact with the children.

Child custody battles take a toll on the parents as well as children involved in them. Whether you are a victim of domestic violence or a concerned parent fighting for the welfare of your children, it is paramount to consider legal aid from a qualified family law attorney. Similarly, if you are at the receiving end of a false accusation of violence which can affect your custody case negatively, you need strong legal assistance to prove your innocence.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Divorce When There Is Domestic Violence Involved

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmDomestic abuse is one of the most common reasons for a divorce. It involves mistreatment of one partner by the other, generally bordering towards violence. Physically harming a person (sexual assault, hitting etc.) or mental and emotional harassment (causing fear with threats of abuse, isolating partner from other people, stalking etc.) are all forms of domestic abuse. Even though one usually hears of women getting exploited in a relationship in such a manner, it isn’t necessarily true in all cases. Men can be victims of domestic abuse as well, and bringing their cases to light is a lot more difficult, since a lot of people aren’t willing to believe their side of the story. Also, in a lot of these cases, children are forcefully involved in the violence, and they may grow up to become abusive.

Not the easiest thing to do

Wanting to leave an abusive relationship may seem like the most obvious choice, but people who have faced such situations, know that it isn’t always the easiest thing to do. People who have already been using violence may start hurting their partner even more, using threats and more violence to keep them from trying to run off. In some cases they may resort to emotional blackmailing when talks about a separation comes up.

Get in touch with someone who can help

No matter how tough it is though, in such situations it is best to get in touch with first a policeman and then a lawyer, immediately. A temporary restraining order can be issued against the abusive partner that prohibits him or her from coming into contact with their spouse. This way, the person can be assured safety and protection. Criminal charges can be filed against the abuser for any harassment, but the police need to be notified as soon as possible.  A detailed complaint should be prepared, stating clear facts of the marriage and the violence involved. If the abuse has been going on for a long time, the case will be more strongly presented in court. A thorough understanding of the domestic violence act can help people understand what can be expected from a court ruling. Though there are a lot of protective acts included, there are still a few limitations that one may need to keep in mind, in order to take full advantage of the law.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Seeking Temporary Restraining Orders During Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmNot all divorces are an amicable parting of ways. In fact, in cases where domestic abuse either physical or emotional is involved, things can be far from pretty. Sometimes, if one spouse – usually the woman – feels that her life is endangered by continuing to live in the same home as her estranged spouse or even interact with him on any level, she may file a TRO or temporary restraining order. Here’s what you need to know about temporary restraining orders during divorce.

What does a temporary restraining order achieve?

For a victim of domestic abuse, the temporary restraining order can mean the difference between life and death. In spite of filing for a divorce,  the abusive spouse may not let up on the harassment of their soon to be ex. In fact, the very act of serving divorce papers to the abusive party may trigger another fit of rage. And there’s nothing more dangerous than a spurned lover, or in this case – spouse.

Physical abuse or emotional abuse and the TRO

A TRO applies not just to cases involving physical abuse, but also for emotional or mental abuse. Courts recognize that this can be just as damaging, and is usually sympathetic, especially when there are children involved. While it may be easier to prove instances of physical abuse by having a medical doctor or neighbor provide testimony or providing photographic evidence, you can have a similar testimony also provided by similar upstanding community members that know you and your spouse well and may have witnessed such instances of mental or emotional abuse.

How do you get a temporary restraining order?

To get a TRO, you will need to file a motion in court for approval by a judge. Once he or she signs off on the temporary restraining order, you are protected by law from being approached by your abusive partner. A TRO goes by various names including an order of protection, or an injunction.

It helps you by forcing your abusive ex to stay away from you once they are notified of the TRO. Usually, this will mean they are excluded from contacting you, your kids and other members of your immediate family, or otherwise as dictated by the terms of the TRO. It will also list out locations that are deemed taboo for the person against whom the TRO is issued. This may include your home, your place of work, the kids schools, your car, the day care facility your kids go to and so on. Violation of such an order can result in the abuser being put behind bars, should you approach the court or the cops to enforce the TRO.  Remember, if you are a victim of abuse in your marriage, you don’t necessarily have to have a separate domestic violence case in court to get a TRO.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Say No to Abuse and Yes to Divorce!

Posted by: Gerald A. Maggio, Esq.

domestic violence attorneys Orange County; The Maggio Law FirmDomestic abuse though disliked and discouraged by the society at large continues to prevail in some limited sections of society even today. In our practice, we come across a number of cases where abuse is one of the primary or even the only reason that a spouse wants to divorce their spouse. This is something that needs to be encouraged more than it is being encouraged in this day and age.

Reluctance & Feeling Helpless

The number of people who go through domestic abuse in their marriage and those that file for divorce on this basis are incomparable. Only a handful of people that should opt out of their marriages because of domestic violence actually do it. This can be attributed to the social stigma that continues to be felt in some sections with regards to a divorce, and otherwise because the abused feel helpless to do anything.

Decisions can be taken and they can be wrong. It is not a must for each and every decision taken by you to be absolutely correct. This needs to be realized. There are chances of discrepancies and if you think that a wrong decision has been made that is unable to give you what you want, you need to opt out of it.

If you have chosen to get married to someone and the marriage is resulting in abuse from your spouse, you need to come to the realization that you cannot continue to live under those conditions.

There can be many types of abuse and if you are subjected to any, you should stand for your rights and if your spouse is unable to stop such acts you should go for a divorce.

Types of Abuse

Abuse in a marriage can be categorized broadly into 3 categories at the very least.

The first is physical abuse which involves physically assaulting, beating or hurting you in any way that is not permitted by you. Physical abuse if looked down upon by the courts and can not only result in Orange county divorce proceedings, but the spouse initiating the abuse can be made subject to criminal proceedings.

The second type of abuse can be emotional or mental abuse, where maybe not your body, but your mind, is tortured. Mental and emotional abuse can take many forms and there are several ways that these can be conducted. While these are typically harder to prove, they will also count against the spouse in divorce case.

The last and most important category is child abuse. If the other parent is abusing the child in any way, you need to step up and for the best interest of your child and yourself you need to opt out of the marriage and go for an Orange County divorce. The courts look to protect children and will deal with parents involved in child abuse harshly.

If you suffer from any sort of abuse in your marriage, contact us at The Maggio Law Firm today to learn what your rights, including the filing of a restraining order, are.

Types of Restraining Orders in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmThere are many reasons that people go through a divorce. If you are a victim of domestic violence, you can look at divorce as a means of protection from your spouse. The abusing spouse needs to be dealt with, and you need to take action right away. The faster you act, the better the chance of ensuring the protection of you and your family.

If you think you are in grave danger, the first thing you should do right now is contact law enforcement right away. If, however, the problem is a persistent one but not one that poses immediate danger, you should, along with your Orange County divorce, file for a restraining order.

There are two main types of restraining orders in Orange County family law to protect the victims and families or those victims from abusive spouse and individuals.

Restraining Order Types

·         EPO (Emergency Protective Order)

An emergency protective order is a temporary order issued in criminal domestic violence situations for restraining an individual away from a person or a group of people, and is often part of a domestic violence incident by one spouse against another that led to an arrest by the police. These orders are specially issued by the law enforcement agencies and will be valid for no more than five days of issuance.  There are a number of victims that this restraining order applies to, such as:

  • Domestic Violence
  • Stalking
  • Child Abduction
  • Child Abuse

·         DVRO or TRO (Domestic Violence Temporary Restraining Order)

The domestic violence temporary restraining order is the primary type of restraining order that are made to apply specifically in cases of domestic violence whether it be for an Orange County divorce or otherwise. The emergency order is put in place by an Orange County family law judge for a total of 21 days and a hearing on the merits and facts is required within 21 days to determine if a more permanent restraining order of 1-5 years should be issued by the court.

If you have been subjected to abuse at the hand of your spouse, now is the time to stand up and protect yourself through a divorce and these restraining orders.

 
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