If you are facing a divorce that’s based on domestic violence, your number one priority should always be you and your children’s safety. As for your divorce, the fact of domestic violence can directly affect your California case. Understanding the basics regarding domestic violence and divorce can help. If you are going through a divorce that involves domestic violence, you need to consult with an experienced and compassionate Orange County divorce attorney today.
Many people are abused in relationships and fail to recognize this fact because they haven’t been physically harmed. In the State of California, victims of domestic violence can suffer abuse in a variety of forms:
- If your spouse intentionally causes you bodily harm
- If your spouse’s recklessness causes – or attempts to cause – you bodily harm
- If your spouse sexually assaults you
- If your spouse’s behavior causes you to feel reasonably afraid that you (or someone else) is in immediate danger of being harmed
- If your spouse engages in any other behavior that could cause the court to issue a domestic protective order, including harassing you, stalking you, making unwanted calls to you, threatening you, or physically assaulting you
In fact, any of these actions are considered domestic violence if they are committed by a current or former spouse, a co-parent, a person with whom you currently live (or lived) on a regular basis, a person who is related by blood or marriage, a person whom you are dating or did date, a person to whom you are or were engaged, or a parent.
If any of this information applies to you or to someone you know, seek help from the court.
California: A Community Property State
California is a community property state, and this means – generally – that the assets and debts you and your spouse acquired during your marriage will be split evenly between you upon divorce. In actuality, however, it’s far more complicated than this, and a variety of factors can come into play. In fact, the court has vast discretion when it comes to dividing your property, and domestic violence will likely be taken into consideration in the process.
California: Child Custody
In California, custody of your children can be joint custody (when you and your spouse share custody) or sole custody (when one of you is the primary parent). Within these parameters, there is also legal custody and physical custody. Physical custody refers to who provides the children’s primary home, and legal custody refers to who has the legal rights and responsibilities to make important parenting decisions for the children (usually both parents). If you’re going through a divorce that involves domestic violence, child custody arrangements are naturally your top priority. It’s important to recognize that California courts take domestic violence very seriously and that this will very likely factor into your child custody arrangements.
The Court’s Stance
When it comes to custody of your children, the courts are always concerned with what’s in their best interests. California policy is always to ensure the health, safety, and welfare of children. It’s clear that domestic violence or abuse that’s perpetrated in the home is detrimental to children. Further, California court orders must assure the safety of any involved children and their family members. As such, judges are required to factor domestic abuse into the determination of legal and physical custody of children.
The Judge’s Consideration
When domestic violence allegations are part of a custody case, the court can consider corroborating evidence from a variety of sources:
- Reports from law enforcement
- Records from Child Protective Services
- Reports and/or documents from social welfare agencies
- Reports from medical professionals
- Additional court orders
- Reports from other public agencies or nonprofits
The Judge’s Decision
If the court determines that your spouse did perpetrate domestic violence against you or one of your children within the last five years, he or she must apply what is known as a “rebuttable presumption.” This is a legal assumption that can only be overturned with significant evidence to the contrary, and it means that your abusive spouse shouldn’t be awarded sole or joint custody of your children.
Once it’s determined that an abusive parent should not be awarded custody, the question of visitation arises. Unless visitation in some capacity is not in the best interests of the children, the judge is required to grant a reasonable right to visitation. Because domestic violence is obviously not something your children should be subjected to, the judge may order supervised visitation, which involves having a third party present to supervise all of the abusive parent’s visits with the children. Or the judge may ban all overnight visitations. If you have a protective order in place, the judge is likely to employ supervised visits or to deny visitations outright, depending on the situation.
If you pursue an emergency protective order against your abusive spouse, the evidence of domestic abuse inherent to the order can serve as a basis for you being awarded temporary custody (or a supervised visitation schedule), which will help you move through the divorce process. All told, the court has a great deal of discretion, but its objective remains that which is in the best interest of your children. If you were awarded an emergency protective order, California law encourages the courts not to write a permanent order that is inconsistent with that protection.
If at any time during a custody case, a judge becomes concerned about the safety of a child, he or she can take whatever actions deemed necessary to protect the child – until a thorough investigation can take place. In cases of extreme violence, the court has the authority to terminate a parent’s rights by opening an entirely new case to remove the right to both physical and legal custody of the child. While drastic measures such as this are rare, when they do happen, they are irreversible.
Your Divorce If you are going through a divorce that involves domestic violence, make you and your children’s safety your top priority. An experienced, dedicated, and compassionate Orange County family law attorney will help you ensure your family’s safety and will aggressively advocate for your rights.