After the wedding, Lily’s friends noticed some changes in her behavior. She stopped meeting them for lunch every Sunday. The phone calls and texts dropped off. When they asked Lily to go shopping with them, she never had any money. Her makeup, hair, and clothes were always perfect, and they never saw any bruises, so they assumed Lily was just a busy newlywed. They didn’t know about the subtle signs of domestic violence.
It takes at least six months from the date the divorce petition is filed on your spouse to finalize a California divorce. Sometimes people need help immediately. For instance, a husband or wife suffering at the hands of their spouse may ask the police and the courts for protection. It may help to know more about domestic violence restraining orders and the California divorce.
What Constitutes Domestic Violence?
The actual definition of domestic violence might surprise you. It’s not just about physical violence. In fact, domestic violence includes:
- Any kind of physical attack, including pulling hair, kicking, hitting, shoving, or throwing objects at another person;
- Sexual assault;
- Comments or behavior that cause someone to be reasonably afraid someone may be seriously hurt; and
- Harassment, stalking, threats, disturbing the peace, or destruction of someone else’s personal property.
If you fear another person, you may need protection sooner rather than later.
How Does a Domestic Violence Restraining Order Work?
If someone you have a close relationship with has abused or threatened to abuse you, a domestic violence restraining order may help. This document is a court order that helps protect people in abusive situations.
You have to meet the following two criteria to ask for a domestic violence restraining order:
Another person has abused you or threatened to abuse you;
You have a close relationship with the alleged abuser.
In addition to your current spouse, the following relationships might be considered close. Someone who you:
- date or used to date,
- have divorced or separated from,
- has lived with you or used to live with you,
- parents a child with you, or
- is a close relative, even grandparents or in-laws.
You may also request a domestic violence restraining order if another person is abusing your child.
But what can a domestic violence restraining order do?
The order may tell the abuse to avoid certain behaviors, like:
- Contacting you and your children,
- Going to your home, work, and schools,
- Owning a gun,
- Approaching your pets.
What may be surprising is that a restraining order can order the abuser to move out of the home, pay child and spousal support, and pay some other bills. The subject of the restraining order may also be told not to change insurance policies, phone plans, or do anything to affect your property. Finally, the restrained person is often told to complete a 52-week batterer intervention program.
Learn More About Domestic Violence Restraining Orders
Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
How to Get an Ex Parte OrderThe simple answer is that you file a motion with the court asking for the relief that you need as soon as possible. However, each county in California may have its own rules and procedures for obtaining an ex parte order. Failing to follow the rules may cause your motion to be denied. You may file a Temporary Emergency Orders (Ex Parte) (Form FL-305) to request certain temporary emergency court orders. While this form may be used throughout the state, you will need to check the rules for the county in which you file for additional information. Hearings often are heard within 24 hours of filing the request for an ex parte order, at which time a judge will hand down a ruling on your request for Temporary Emergency Orders.
When an Ex Parte Order Is AppropriateSometimes the filing spouse may need to get an issue before a judge as quickly as possible because an emergency exists. In fact, the filing party may request an ex parte action for one or more of the following reasons:
- The spouse who filed the divorce case may be in danger.
- A child involved in the divorce case may be in danger.
- The filing party needs temporary use of a marital asset.
- The filing spouse feels that his or her property might be destroyed or damaged by the responding spouse.
It’s Complicated.The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including ex parte orders. Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.
Some Signs of Abuse Are ObviousPhysical violence may be the biggest red flag. If you have experienced any of the following from your spouse, you have been abused:
- Hair pulling, slapping, biting, kicking, scratching, and choking;
- Putting you in dangerous situations;
- Forcing you to use drugs or alcohol;
- Using weapons or other devices to hurt you; and
- Forcing you to perform sexual acts.
More Subtle Actions May Be Abusive, TooSome signs of an abusive spouse may not be so obvious. However, the following behaviors may be considered mistreatment:
- Insulting remarks;
- Undermining your self-confidence;
- Demanding that you change your appearance or get plastic surgery;
- Isolating you from your family and friends;
- Destroying your personal property;
- Ignoring your wishes and boundaries;
- Harassing you with phone calls, emails, and texts;
- Monitoring your every move;
- Showing no compassion or empathy.
What Can You Do if You Recognize the Signs of an Abusive Spouse?Your course of action may depend on the level of abuse you face. If your spouse will not address abusive behavior, it may be time to consider divorce or at least a domestic violence restraining order. However, leave or call for help if you feel unsafe for any reason. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Are you the victim of domestic violence? Have you ever – or do you now – have reason to fear your spouse? If so, you are not alone. In fact, there are more than 100,000 domestic violence-related calls to law enforcement every year. In this blog, we will touch on some of the issues where domestic violence and your divorce intersect.
Acts of Domestic Violence
When we think of this, we often think of physical damage one spouse inflicts on another. However, the law defines domestic abuse as:
- Physically hurting or trying to hurt someone, intentionally or recklessly;
- Sexual assault;
- Making someone reasonably afraid that they or someone else are about to be seriously hurt; OR
- Harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
Domestic violence in a marriage also affects the dissolution of that marriage.
Domestic Violence Affects Child Custody Arrangements
When children are involved, the focus in a California divorce is on doing what is in the best interests of the children.
Judges always take domestic violence into account when deciding child custody arrangements. The safety of the child and other family members is critical. Courts will review evidence that backs up domestic violence accusations.
If allegations of domestic violence arise in a divorce matter, the court will assume that the abusing parent should not have custody. This is called a “rebuttable presumption” because the accused party can present evidence overcoming the assumption they are not qualified to care for the children.
Visitation may also come into play when domestic violence is an issue. Protective orders and restraining orders may be necessary. In some cases, the court may allow only supervised visitation to ensure the children’s safety.
Domestic Violence May Affect Your Spousal Support and Property Division
This issue is a little more of a gray area. The problem is that either party could have committed the acts of domestic violence. Sometimes both parties have crossed that line.
The court examines allegations of domestic violence. Criminal convictions of domestic violence set up a rebuttal presumption situation. Generally, unless proven otherwise, the injured spouse is not required to pay spousal support to the convicted spouse. The convicted spouse has the opportunity to successfully rebut the conviction and change the judge’s mind.
However, allegations and convictions of domestic violence are taken seriously by the courts. They may have a profound effect on your divorce – you may become ineligible to receive support if you have committed violent acts.
In addition, the courts may give up to 100% of the community property interests in retirement and pension benefits to an injured spouse. Here again, the court will consider other factors before making a decision.
Domestic violence has a huge impact on a couple’s relationship. It’s only natural that it would also affect their divorce.
To discuss how to handle domestic violence and your divorce, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
If you or your children are in danger, call 911. You may also find local domestic violence organizations here or call the National Domestic Violence Hotline at 1-800-799-SAFE (7233).
Harassment can take many forms. During an emotional time, such as a divorce, power struggles and frustration can lead to disturbing behavior from your spouse. Though it may seem like just one more hurdle to overcome, there are ways of dealing with harassment during your divorce.
What Behavior Rises to the Level of Harassment?
California Code of Civil Procedure 527.6 defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person …”
That may sound vague, but the Code also defines “course of conduct” by listing the following behaviors:
- Following or stalking an individual
- Making harassing telephone calls to an individual
- Sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email.
If someone is threatening you, make sure you are in a safe place. Then, seek court intervention.
What Kind of Order Might Help?
A restraining order is often used to curb such harassing behavior. There are four types of restraining orders:
- Domestic violence;
- Civil harassment;
- Elder abuse; and
- Workplace violence.
Also, protective orders may be temporary (usually for 20-25 days), permanent (lasting for up to 5 years), or criminal (if the harasser is charged with a crime, for 3 years after the case is over).
When harassment is done by a spouse, ex-spouse, registered domestic partner, someone you formerly dated or lived with as more than roommates, or a close relative, you may ask for a domestic violence restraining order.
However, when harassment does not meet the criteria for domestic violence, a civil harassment restraining order can be used to stop the abuse.
What Can a Restraining Order Do?
First, it’s important to understand the people involved in the restraining order, also called a protective order. The person asking for the order is the “protected person.” Often, other people are included as protected persons, including family members or others living with a protected person. The person who is accused of harassment is the “restrained person.”
A protective order may seek to stop specific behaviors, like stalking, hitting, or destroying personal property. In addition, some orders require the restrained person to stay a certain distance away from the protected persons. For example, a spouse may be told to stop emailing their spouse during a divorce and to stay at least 100 yards away from the children’s school.
When a restrained person violates a protective order, consequences include paying a fine, going to jail, or both.
Take Care of You.
If you are being harassed, abused, or threatened, help is available:
- Ask trusted friends and family members to help.
- Contact your local domestic violence shelter.
- Call the National Domestic Violence Hotline (1-800-799-7233).
- Call 911 if you or a loved one is in immediate danger.
You Don’t Have to Do This Alone.
Divorces are hard on everyone involved. We’re here to help. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.
Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Cost, including San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
A domestic violence restraining order is a civil order entered by the court directing an abuser to stop harassing or abusing the victim. The type of abuse that may be the basis for the entry of a restraining order includes the following:
- causing or attempting to cause the victim physical injury;
- making the victim fear he or she or another person is in immediate danger of being harmed;
- threatening or harassing the victim, in person or through other means;
- stalking the victim;
- destroying the victim’s personal property; or
- disturbing the peace of the victim.
For the court to enter a domestic violence restraining order, the abuser must be related to the victim in one of the following ways:
- a spouse or former spouse;
- a person the victim is dating or has dated;
- a lover;
- the other parent of your child;
- anyone closely related to the victim by blood, marriage, or adoption; or
- a person who regularly lives in the victim’s home.
A domestic violence restraining order may provide protection for the victim’s children as well as the victim. Such a restraining order can also include other orders besides a command to stop the abuse. For example, a domestic violence restraining order may include an order regarding spousal support, custody, child support, or parenting time; granting the victim possession of a pet; removing the abuser from a home shared with the victim; or prohibiting the abuser from possessing a firearm.
A victim seeking a domestic violence restraining order must file an application with the court. The application includes a Domestic Violence Date of Birth Verification (Form FL/E-LP-640), a Notice of Court Hearing (Form DV 109), a Request for Domestic Violence Restraining Order (Form DV-100 and FL/E-LP-613), a Description of Abuse (Form DV-101), and a Temporary Restraining Order (DV-110). Additional forms must be filed if the victim is also seeking an order regarding spousal support, child support, child custody, or visitation.
If the victim is in immediate danger, the court may issue a temporary restraining order after processing the application but before holding a hearing. Regardless, the court will set a hearing, and the victim must have the abuser served with the Notice of Hearing. Service of the Notice of Hearing is usually done through the sheriff’s department of the county where the abuser lives.
The victim may bring a support person to the restraining order hearing, even if the victim also has an attorney. If evidence at the hearing shows the existence of past or present abuse of the victim by the abuser, then the court will issue a domestic violence restraining order. A domestic violence restraining order can last up to five years but lasts only three years if no termination date is stated. During the last three months of a restraining order, the victim can ask the court to extend the restraining order for another five years or permanently.
If you or a loved one has been or is a victim of abuse, consult an experienced attorney experienced in domestic violence law to help you get a domestic violence restraining order. The Law Offices of Judy L. Burger can help you get the protection you need. Call today to see how we can help you: (415) 293-8314.
An important tool to help a victim of threatened or actual domestic violence is an order of protection from the court. This civil court order, called a restraining or protective order, commands the abuser to stop the abuse or suffer punishment by the court. The type of restraining order entered depends on the process used to get the restraining order.
The restraining order entered in emergency situations is called an emergency protective order. A situation is considered to be an emergency when a police officer responds to a domestic violence call or when someone has made a report of abuse to the police. In such cases, the police can request an emergency protective order under California Family Code § 6250. The court can enter an emergency protective order without first holding a hearing, but this type of protective order is only good for seven days.
If a victim needs a protective order for a longer period of time, or if the victim wants to apply for the restraining order without police involvement, he or she may apply to the court for a domestic violence restraining order. Abuse is considered to be domestic violence if the abuser is related to the victim as a spouse or former spouse; a person the victim is dating or has dated; a lover; the other parent of the victim’s child; anyone related to the victim by blood, marriage, or adoption; or a person who regularly lives in the victim’s home.
However, before entering a permanent domestic violence restraining order, the court must hold a hearing, and the abuser must have notice of the hearing. If, after a hearing, the court enters a domestic violence restraining order, that order may specify what the abuser can and cannot do to the victim or how near to the victim the abuser can be. Such an order may also include orders regarding child support, visitation, and custody orders if the victim and the abuser have children together; orders regarding possession of a shared residence or pet; orders for spousal support; or an order prohibiting the abuser from possessing a firearm. A domestic restraining order may be entered regardless of whether the court has previously issued an emergency protective order regarding the parties. A domestic violence restraining order can last up to five years.
If you are in immediate danger, the court may issue a temporary restraining order after processing the application but before a hearing.
If you or a family member has been a victim of domestic violence, seek help from a qualified family law attorney. The Law Offices of Judy L. Burger are experienced in helping victims of domestic violence get the protection they need. Call today to see how we can help you: (415) 293-8314.
Nothing affects children like domestic violence. Recognizing this, California courts are empowered to deal harshly with the custody and visitation rights of those found to have committed domestic violence. Before a parent’s rights may be impacted, however, certain requirements must be met.
Domestic violence is defined to include causing or attempting to cause bodily injury or sexual assault, placing someone “in reasonable apprehension of imminent serious bodily injury to that person or another,” as well as “threatening, striking, harassing, destroying personal property or disturbing the peace of another.” Domestic violence is not limited to physical conduct but includes oral or written conduct that otherwise fits the definition of the law.
The first requirement of the law is that there must be a court finding of domestic violence in the last five years. This requirement can be met in two ways:
- The person has been convicted of domestic violence or abuse, as defined in specific California laws; or
- Any court has made a finding that the person committed domestic violence.
After the first requirement is met, “there is a rebuttable presumption that an award of . . . custody [to that person] . . . is detrimental to the best interest of the child.” This means that the parent who committed domestic violence has an extra heavy burden before custody of any type may be awarded to him. The law directs that the court must consider several factors in determining whether this burden is met:
Whether the parent against whom the finding was met has showed that it is in the child’s best interest for him to receive some form of custody;
- Whether the perpetrator completed any court-ordered batterer’s treatment program, alcohol or drug abuse counseling, or parenting class;
- Whether the perpetrator has complied with the terms of his probation or parole, if applicable;
- Whether the perpetrator’s conduct is governed by a protective or restraining order and, if so, whether he has complied with its terms; and
- Whether the perpetrator has committed further acts of domestic violence.
California courts often cite to the “best interest of the children” standard when making rulings and issuing decisions on family law matters. Where does this language come from, and what does it mean for you?
California laws, in many places, refer to the “best interest of the children” or “best interest of the child.” The core statute on what this means is California Family Code § 3011, which is a general provision of law relating to custody.
Section 3011 lists several factors that courts must consider when determining what is in the best interest of children:
- The child’s “health, safety, and welfare”;
- Any history of abuse against a child, the other parent, or a parent’s significant other;
- The nature and amount of the child’s contact with both parents; and
- Either parent’s use of illegal, controlled substances, or habitual use of alcohol or prescribed controlled substances.
The “best interest of the child” standard applies to many types of proceedings:
- Legal separation;
- Actions for exclusive custody;
- Custody or visitation actions under the Domestic Violence Prevention Act;
- Custody or visitation actions under the Uniform Parentage Act; and
- Custody or visitation actions under brought by a California district attorney.
The “best interest of the child” standard is also at play in related proceedings, such as child custody evaluations and parenting plans.
The California Legislature’s widespread application of the “the best interest of the child” standard shows its commitment to the health and well-being of children. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.