Insults. Suspicion. Possessiveness. Jealousy. Isolation. Threats. Domestic violence is not always physical violence. California law can protect you if you feel vulnerable because of the actions of your spouse, partner, or co-habitant, even when there is no physical violence involved. Under the California Domestic Violence Prevention Act, abuse is defined as any conduct which “destroys the mental or emotional calm of the other party.” (Cal. Fam. Code § 6320(c).) This can include physical attacks, threats, stalking, annoying telephone calls, vandalism, and invasions of privacy. (Cal. Fam. Code §§ 6203, 6320)
If your spouse or partner is abusive or controlling, you may be experiencing even more stress and isolation during the COVID-19 pandemic since there are fewer places to go, because your resources are more limited, or for many other reasons. You are not alone. With a domestic violence family law lawyer, you can move toward a more secure future. While you may have heard that the courts are closed due to COVID-19, many courts are still open to an extent. Here are some ways that a family law attorney can help you.
- Restraining Order/Protective Order
A domestic violence family law attorney can help you to get a civil restraining order (sometimes called a Protective Order) against your abuser. A restraining order means that the restrained party (the abuser) cannot go within a certain distance from the protected party (the survivor). Sometimes places that the protected party regularly goes, such as work or school, can also be protected, even when the protected party is not there. Some restraining orders include a “move-out” order, which requires the abuser to move out of the shared home.
A temporary restraining order can be issued quickly—sometimes within one day—so that you are safer, sooner. The temporary restraining order is put in place for two to three weeks, while you prepare for your court hearing. After your court hearing, if the judge rules in your favor, you will receive a “permanent” restraining order, which generally lasts from three to five years. Restraining orders, whether temporary or permanent, are enforceable by the police. Violations of a restraining order are criminal misdemeanors and are punishable by fines and time in jail.
- Child Custody
When you ask the court for a restraining order, you also have the option of protecting your children with the same restraining order. You can request a temporary custody order that allows you to keep your children with you.
Courts are required to make custody decisions that are based on the child’s best interest. In general, California’s policy is to favor continuing contact with both parents. However, a finding of domestic violence by either a criminal court or a family court automatically triggers a rebuttable presumption that sole or joint physical or legal custody of a child is detrimental to the best interest of the child. This is true even when the abuser does not direct their abuse toward the children.
In other words, the court must consider the domestic violence finding before deciding which parent should have custody of any children. The abuser will have to present specific evidence that shows that it is in the child’s best interest for the abuser to have either custody or visitation to overcome this presumption. While not impossible, this makes it more difficult for an abuser to gain joint custody.
If you are married to someone who is abusing you physically, mentally, emotionally, or financially, a family law attorney can help you through the process of filing for divorce. Your attorney can give you information regarding your rights to spousal support and your share of the property that you and your spouse obtained during marriage. Throughout your divorce, your attorney can represent you in court and provide a buffer between you and your abuser by communicating with your spouse or your spouse’s attorney on your behalf. With an attorney, you will not need to suffer through communications with your spouse that may escalate into fights or continuing abuse.
If you feel unsafe in your home, please call the National Domestic Violence Hotline at 800-799-SAFE (7233). With help, you can create a plan to leave. Meanwhile, keep records of what is happening in your home. Reach out to others if you need help. When you are ready, consider seeking the assistance of a family law attorney who will be by your side while you seek a restraining order, custody of your children, and a divorce.
Solange Rousset Esq.