Domestic violence is “abuse” against specified classes of individuals. These individuals include: spouses or former spouses, cohabitants, persons in dating or engagement relationship, co-parents, children, or blood relatives.
"Abuse" is specifically defined as:
1. Intentionally or recklessly causing or attempting to cause bodily injury (Cal. Fam. Code §6203(a));
2. Sexual assault (Cal Fam. Code §6203(b));
3. Placing a person in reasonable apprehension of imminent serious bodily injury to that person or another (Cal. Fam. Code §6203(c)); or
4. Engaging in any other improver behavior (that has been or could be enjoined pursuant to Cal Fam. Code §6320 – such as “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls, destroying personal property, or contacting, either directly or indirectly, by mail or otherwise” (Cal. Fam. Code §6203(d)).
So what qualifies as abuse?
Does verbal abuse alone count?
Probably not; but if made repeatedly and threateningly it may qualify as “harassment.”
Does kicking the wall or throwing items count? Technically yes.
Many domestic violence incidents occur without any third party witnesses being present or without clear physical evidence of abuse. Accordingly proof of the occurrence of a domestic violence incident may be based on the statements of a victim alone (or the alleged perpetrator if he/she decides to testify). In such circumstances different county courts and judges may view the same facts quite differently.
Implications of Domestic Violence in Family Court
Being found guilty of a domestic violence incident in criminal court and the granting of restraining orders in family court may have far reaching implications against the perpetrator.
• Custody Issues
There is a presumption that awarding custody to someone who commits domestic violence would be detrimental to a child’s best interest. The presumption applies when the court has found that the person committed violence within the previous five years against either the child’s siblings or the other party seeking custody (Cal Fam. Code §3044).
Accordingly, a domestic violence victim could likely be granted sole custody. However this presumption would not apply if both parents have engaged in domestic violence.
• Dwelling Exclusion
A party who commits domestic violence may also be excluded from the parties’ residence, for whatever period and on whatever conditions the court determines, “regardless of which party holds legal or equitable title or is the lessee of the dwelling.” (Cal Fam. Code §§ 6218(b), 6321(a), 6340(a)).
• Spousal Support
Also, in dissolution cases, there is a rebuttable presumption affecting the burden of proof against a spousal support award (whether temporary or permanent) to a spouse convicted of an act of domestic violence against the other spouse within the five-year period before commencement of the action, or at any time thereafter (Cal Fam. Code §4325(a)).
• Firearms:
Under federal law, a domestic violence restraining order issued after a noticed hearing usually will prohibit the restrained person from owning, accepting, transporting or possessing firearms or ammunition for so long as the restraining order is in effect. A violation of this prohibition is a separate federal crime (18 USCA § 922(g)(8)).
• Attorney Fees and Damages
A domestic violence perpetrator may also have to pay restitution to a victim for loss of earnings and out-of-pocket expenses--including, but not limited to, medical care and temporary housing expenses--incurred as a direct result of the abuse inflicted by the perpetrator (Cal Fam. Code §6342(a)(1)).
Also a domestic violence victim may receive attorney fees pursuant to Cal. Fam. Code §§6344, 271. The amount fees ordered pursuant to these statutes may be higher than fees normally awarded in dissolution proceedings pursuant to the each party’s relative income levels (Cal. Fam. Code §2030).
• Employment:
Furthermore many employers (especially government employers) require that an employee have “clearance,” which requires that the employee (potential employee) not have been convicted of certain criminal offenses. Accordingly domestic violence perpetrators may find their employment being threatened if they are found guilty of a crime.
(See: http://www.taonline.com/securityclearances).
Conclusion
Domestic violence can lead to various ramifications. Certainly the victims of such violence and their children are affected directly. However, if a victim has to rely on the perpetrator for support, then that victim will also be indirectly affected should the perpetrator no longer be able to provide support. In such circumstances one solution may be to for the parties to agree to non-domestic violence injunctive orders which may not have the same negative consequences as domestic violence orders – but could have the same benefit of keeping a perpetrator away.
For more information please see Domestic Violence page.
