California law defines domestic violence as “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant or person with whom the suspect has a child or is having or has had a dating or engagement relationship.” It is important to recognize that domestic violence is not limited to physical abuse. Emotional and financial abuse can also be a form of domestic violence. In this article, the Sacramento family law attorneys at Wagner Family Law will discuss domestic violence and how it impacts divorce cases and child custody. 

Domestic Violence Laws in California

California has clearly defined laws when it comes to domestic violence. All forms of domestic abuse are considered illegal under California Penal Code § 273.5. Victims of domestic violence have the right to file a restraining order against their abuser and file charges against them if they choose. This can be a difficult process, however. It helps to have a Sacramento family lawyer who can advocate on your behalf during this difficult time. We help ensure that your arguments are in order and that you can successfully navigate the complex judicial process of filing and receiving a restraining order. 

Domestic Violence Restraining Orders

California Family Code § 6320 gives victims of domestic violence the ability to seek restraining orders to protect themselves during the process of divorce. Domestic violence restraining orders offer protection to the parties who seek them. These protections include prohibiting communication between the spouses, barring an alleged abuser from coming within a certain distance of the protected party, and granting temporary custody or child support. 

Judges may also grant emergency restraining orders known as ex parte restraining orders when they believe an individual is in immediate jeopardy of suffering harm. Emergency orders can last up to 21 days. The party benefiting from the restraining order can then ask for an extension from the court if necessary. 

It is generally easy to get a domestic violence restraining order when there are physical signs of abuse, such as bruises and hospital records. However, many abusers are quite adept at masking signs of their abuse from others. This can make it more difficult to prove you need a restraining order from your spouse. To prove domestic violence claims in court, you must be able to provide the judge with as much evidence for the abuse as possible. This evidence can take the form of:

• Police reports

• Medical records

• Photographs of injury or property damage

• Video or audio footage of the violence

• Witness statements

The Sacramento domestic violence and divorce attorneys at Wagner Family Law help victims of domestic violence through all phases of the court process. We will help you gather evidence and present the court with a comprehensive understanding of the abuse you suffered in your marriage. We will ensure your safety is prioritized through the process and file a motion for a domestic violence injunction or restraining order if need be. 

Can Evidence of Domestic Violence Impact My Divorce Case?

Yes. While California is a no-fault state when it comes to divorce, evidence of domestic violence can have a profound impact on your divorce case. “No fault” means that you do not have to prove fault-based grounds to pursue a divorce in California. Instead, one party only has to establish that the marriage is irretrievably broke to file for divorce. However, allegations of adultery, domestic violence, financial mismanagement, and more can impact how the courts resolve key decisions related to your divorce. 

• Child custody - Generally speaking, the courts have a duty to act in the best interests of the children when deciding issues related to child custody. Allegations of domestic violence will have a profound impact on the way in which the court views a spouse who is tasked with the care of the children. Allegations of domestic violence could make it more difficult for this spouse to receive full or even partial custody of the children. The court will assume that an abusive spouse does not have the best interests of the children at heart. 

• Spousal support/alimony - Allegations of domestic violence will also impact spousal support or alimony. California courts are unlikely to award spousal support to an abusive partner regardless of whether those payments are temporary or permanent. Additionally, if the abusive partner has prior domestic violence convictions within the previous five years, the court is unlikely to rule in their favor when it comes to awarding alimony. 

Child Custody and Domestic Violence in a California Divorce

As stated earlier, California considers the best interests of the child when awarding custody. The law specifically states that placing a child in a home where there is evidence of domestic violence is not in the child's best interests. However, the law also prioritizes children having frequent contact with both parents after a divorce.

California Family Code § 3044 creates a presumption against awarding custody to anyone the court finds has committed domestic violence within the last five years. What this means is that the court assumes that it is not in the child's best interests to be in the custody of a domestic abuser. However, the presumption is rebuttable. In other words, the spouse can argue against the presumption in court. 

To overcome the presumption, the allegedly abusive parent must provide evidence that:

• The best interests of the child are served by awarding custody to the allegedly abusive parent

• The abusive parent has successfully completed treatment or counseling programs for anger management or violent conduct

• The abusive parent successfully completed the required probation or parole

• The abusive parent did not violate the court's restraining order

• There were limited instances of domestic violence

Talk to a Sacramento, CA, Domestic Violence and Divorce Lawyer Today

The Sacramento divorce lawyers at Wagner Family Law represent the interests of California residents who have been subjected to domestic violence during their marriage. We can help you through all phases of your divorce, including getting a domestic violence restraining order and ensuring that you are safe throughout the process. Call our office today to schedule an appointment and learn more about how we can help.