There are many types of abuse, and a family law court shall take all of them in consideration. There are generally eight types of domestic violence/abuse: physical, intimidation, child abuse, verbal and emotional, social isolation, religious, male/female privilege (diminishing the victim’s authority and preventing him/her from contributing to the relationship and sexual abuse.

If you are in the process of divorce and there are minors involved, issues of custody and visitation will be at issue. The court will consider your domestic violence case if, in the past five years (1) a parent was convicted of domestic violence against the other parent, (2) any court has decided that one parent committed domestic violence against he other parent of the children (which means that court’s previous issuance of a restraining order in your case is relevant in your custody case).

The judge must follow the law in deciding the issues of physical and legal custody.  In California, Family Code (FC) Section 3044 is the seminal rule. If the court finds that 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.

The presumption though may be rebutted by a preponderance of evidence. The court shall consider all of the following factors:  FC 3044 (b)

  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.
  2. Whether he/she has successfully completed a batterer’s treatment program that meets Penal Code Section 1203.097.
  3. Whether he/she has successfully completed a drug and/or alcohol program.
  4. Whether he/she has successfully completed a parenting program
  5. Whether he/she is on criminal probation or parole and whether there has been full compliance.
  6. Whether there is a protective order in protective or restraining order in full force and compliance thereof.
  7. Whether there has been prior domestic violence acts.

Many family law (divorce) attorneys, however, have no criminal background and what happens is that a defendant accused of domestic violence will hire a criminal lawyer and a separate family lawyer.  The criminal lawyer will not be cognizant of how a domestic violence conviction affects the divorce case. While California is a “no-fault” state, an arrest that leads to a conviction or a guilty plead, will lead to an individual losing legal and physical custody of their child/children.

In fact, I discovered in a case that I recently substituted in for my client’s divorce case that his prior attorney had put him on the stand to testify pertaining to alleged prior domestic violence incidence in his divorce case while he still was fighting an ongoing criminal case to the same incident. Note that my client’s testimony was “on record,” meaning a transcript was created and could be used by the prosecutor in the criminal case.

Since I have extensive experience in criminal and family law case, I am purview to the collateral effects of such a testimony to an “open” criminal case.  Could his statements have been used against him in criminal court? Of course! As such, his prior divorce attorney should have claimed the “fifth,” and kept my client quiet.

As for determining spousal support and whether the family law court should award support, FC Section 4320 lists all factors that the court should review. But for those that have been accused of domestic violence, FC 4320 (2)(i), specifically states, “documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence….”

So, domestic violence in the family court arena is broadened to even include emotional and psychological effects as a factor in whether a court should order spousal support. In criminal cases, physical manifestations of violence are necessary—psychological trauma alone does not suffice.

The point is this, when you are confronted with allegations of domestic violence and you are going through a divorce, it is incumbent for you to make sure your criminal lawyer and family lawyer (in the best scenario—should be the same person). But if this is not possible, at least both attorneys should be in full communication how one case will impact the other.

Any questions about criminal or family law, feel free to email me at cicastaneda@sbcglobal.net or call my office at 310-601-7144.

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