The Impact of Domestic Violence on a Family Law Case
Allegations of domestic violence can affect the dynamic of many different family situations. Divorce, child custody arrangements, and visitation agreements can all be impacted by domestic violence situations. You may be wondering whether a judge cares about domestic violence in the context of a family law matter. The following sections outline how domestic violence will impact family law matters.
How Can Domestic Violence Affect Spousal Support?
Spouses who commit domestic violence may become ineligible to receive spousal support after a divorce. On the other hand, the amount and duration of spousal support may increase for spouses who suffer domestic violence during their marriages. In the immediate aftermath of a domestic violence incident, courts may order your spouse to provide you with temporary spousal support to cover your living expenses. With this support, you can remain in your family home while your spouse is forced to live apart from you.
How Can Domestic Violence Affect Child Custody?
Section 3044 of the Family Code states that family courts may consider past instances of domestic violence when determining child custody orders. If it becomes clear that one parent has “perpetrated domestic violence” in the past, they may face serious challenges while seeking custody. Family courts often give sole physical custody to the other parent in this situation.
Under Section 3044, family courts use the same definition of “domestic violence” as outlined in Section 6320.
How Does Domestic Violence Affect Visitation Rights?
Even if a parent commits domestic violence, they may still get visitation rights. However, these rights may be severely limited. Depending on the nature of the domestic violence incident(s), the accused parent may only spend a short amount of time with their children each month. These visits may also be supervised by social workers or law enforcement in order to protect the children from further acts of violence.
Can Domestic Violence Affect Family Law Cases in the Absence of Convictions?
A divorce trial can explore past instances of domestic violence even if they never led to restraining orders or criminal convictions. Since divorce trials occur in civil courts, the burden of proof is lower. Family members may escape convictions in criminal courts because prosecutors fail to establish guilt “beyond reasonable doubt.” However, the same defendant could face consequences for the same alleged act in civil family law courts due to a lower burden of proof.
A spouse may feel uncomfortable with bringing criminal charges or calling the police during their marriage. After separation, however, they may feel more confident in making these accusations of domestic violence known. In a subsequent divorce trial, domestic violence charges may be explored for the first time.
Obtaining a Domestic Violence Restraining Order
Obtaining a domestic violence restraining order (DVRO) in California is relatively straightforward. Due to the urgency of this situation, courts in California recognize the importance of acting quickly. As a result, they will issue a temporary restraining order very quickly – and your burden of proof will be relatively low. However, obtaining a permanent or “final” restraining order is more complex – and it involves a higher burden of proof.
Obtain and Fill Out the Application Form
The first step is to obtain the necessary forms from your local courthouse. Fill out the forms and file your petition in the same courthouse. It may be possible to file a petition for a DVRO electronically.
Get a Temporary Ex Parte Order
In many cases, a family law judge will review your petition on the same day. If everything is in order, the judge should grant you a temporary ex parte order. This will provide protection from your abuser right away.
Attend Your Restraining Order Hearing
Note that your temporary restraining order will eventually expire, and you will need to attend an official hearing to obtain a final restraining order. During your hearing, a judge will review your situation and determine whether a permanent form of protection is necessary. A domestic violence lawyer can help you tell your side of the story during this hearing.
Proof Required for a Domestic Violence Restraining Order
Although a family law judge may grant a temporary restraining order with a very low bar for burden of proof, they approach final restraining orders with more scrutiny. That being said, the burden of proof is still lower than that of criminal cases. While you must prove guilt “beyond reasonable doubt” in a criminal case, you only need to show a “preponderance of evidence” to obtain a domestic violence restraining order.
In order to establish a preponderance of evidence, you’ll need to convince the court that your domestic violence incident probably happened. In other words, the likelihood must be higher than 50%. Various forms of evidence can help, including:
Each domestic violence case is unique, and your domestic violence lawyer can help you collect and present compelling evidence based on your specific circumstances. While online research may provide a few examples of effective evidence, lawyers can offer you more targeted guidance during consultations.
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