Articles Posted in Domestic Violence

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The unfortunate truth is that divorces can cause pain and stress for everyone involved. These include cases of alleged domestic violence. In a recent case, California’s Fourth District Court of Appeals was called on to explain an important point in California divorce matters that some folks might assume goes without saying. If you try to cut off your estranged husband’s penis, you probably won’t be able to get a court to later order him to pay you spousal support.

knife-on-table-1549464Husband and Wife separated in August 2011, following nearly 32 years of marriage. Four months later, Wife was charged with assault with a deadly weapon for allegedly trying to use a knife to cut off Husband’s penis. A court issued a protective order forcing Wife to stay away from Husband, and she later pleaded guilty to the felony assault charge. Wife was convicted and sentenced to three years of probation.

Wife then asked a separate court hearing the divorce case to order Husband to pay her temporary spousal support. The court declined, finding that Wife wasn’t entitled to the support because she had committed an act of domestic violence. Section 4325 of the California Family Code establishes a rebuttable presumption that a spouse convicted of domestic violence within five years of filing for divorce – or at any time thereafter – isn’t entitled to spousal support. In this case, the trial court pointed to Wife’s conviction as disqualifying her from seeking support.

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California law protects victims of domestic violence by allowing them to seek a restraining order against a spouse or family member who has been violent toward the person or threatens their physical safety. A domestic violence restraining order requires the offending spouse or family member to stay away from the victim for a certain time period. In order to get a DVRO, you need to file a petition in court. As a recent ruling from California’s Fourth District Court of Appeals makes clear, you also have to show up at the proceedings and present enough evidence to prove that the restraining order is warranted.

Wedding Rings

Photo: Wedding Rings by alisonjoy — sxc.hu

Wife filed for divorce from Husband in 2013, and she followed soon thereafter with a petition seeking a DVRO. She alleged in the petition that Husband had committed a number of violent acts against her over the years. A court in San Diego held a trial on the petition in early May, and it later continued the proceedings until later that month.

Wife was being cross examined by Husband’s attorney when the proceedings were paused in early May, but she didn’t show up when the proceedings resumed. Wife had asked in the interim to be allowed to appear by telephone, since she was living in Humboldt County at the time. The trial court declined, and it later rejected Wife’s motion to further continue the proceedings. Since she wasn’t there to complete the cross examination, the court also struck Wife’s testimony from the record. The court further found that Wife’s testimony wasn’t credible and said it believed she hadn’t told the truth on the witness stand. It noted that a child services mediator testified that she believed that Wife had sought the restraining order in an attempt to stop Husband from getting custody over the couple’s son. As a result, the court denied the DVRO petition.

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Domestic violence is a serious issue and one that, unfortunately, comes up fairly regularly in California divorce cases. Depending on the severity of the circumstances, a victim of abuse has the right to seek a domestic violence restraining order that requires the abuser to avoid all contact with the victim. As a recent case out of the state’s Sixth District Court of Appeals shows, a person who violates a DVRO not only risks criminal charges but also potentially his or her relationship with his or her children.

Wedding Rings

Husband and Wife were married in 1993 and had two sons before separating roughly 15 years later. When she filed for divorce in February 2008, Wife also sought a domestic violence restraining order against Husband and asked that it be applied to her and the two boys. In support of the order, Wife claimed that Husband had been physically and verbally abusive, that he had punched her in the arm and left bruises on one occasion in 2007, that he had choked the couple’s oldest son – lifting him off the ground in the process – on another, and that he had thrown a piece of wood at her car’s windshield while Wife and the oldest son were in the vehicle as they were driving away.

The trial Court granted the restraining order temporarily, and then for an additional three years. Although Husband sought to have limited visitation rights restored near the end of that three-year period, the trial court instead granted Wife’s request to extend the DVRO for another five years. In reaching this decision, the court noted that Husband had repeatedly violated the restraining order, including by sending “abusive” letters to Wife, trying to contact one of the boys’ teachers, and showing up at their baseball games. Although the court had previously authorized Husband to have monitored visits with the boys, overseen by his therapist, the kids told the therapist that they were afraid of their father and didn’t want to have the visits, according to the court.

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California law provides a presumption that a parent who has committed domestic violence in the last five years should not be permitted to have sole or joint custody over his or her children. Although the “section 3044” presumption can be overcome, it’s up to the parent who has committed domestic violence to rebut the presumption with sufficient evidence. A recent decision by California’s Fourth District Court of Appeals is an example of how the presumption works.

hand-cuffs-12754-mHusband and Wife were married in 2005 and had three children before Wife filed for divorce five years later. Wife claimed that Husband physically abused her over the course of the marriage, including while she was pregnant with the couple’s second child. Among other actions, she said Husband regularly pushed her and threw things at her and that he also destroyed many of her belongings. Wife obtained a restraining order against Husband after what the Court called a “particularly violent episode.” Husband was arrested less than a year later, stemming from an incident in which he threw Wife into a wall.

The parties reconciled in 2012, but it didn’t last. Husband allegedly became abusive again after Wife confronted him about being unfaithful, including by throwing an iPhone, iPad, and burrito at her on different occasions. He also allegedly struck her on the head while she was driving the family car. Wife obtained a temporary domestic violence restraining order after moving out of the family home with the kids. A judge also awarded her temporary sole physical and legal custody over the children, pending a hearing on the matter. Wife later filed a second petition for divorce in 2013.

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A review of existing scientific literature on the association between domestic violence and high abortion rates, finds that as many as 25% of all women who have had abortions have a history of domestic violence.

The review was conducted by researchers at Kings College London, and the findings were published recently in the journal PLOS Medicine. The review was based on analysis of as many as 74 studies that probed a possible link between domestic violence, and women who have had abortions.

The study’s findings were disturbing to San Jose family lawyers, to say the least. According to the study, across the world, between 2% and 30% of all women who had an abortion had been victims of domestic violence at some point during the previous 12 months. Between 14 % and 40%, also had been victims of domestic violence at some point in their lives. Overall, the study estimates that a quarter of all women worldwide who have had an abortion, have also been victims of domestic violence. Domestic violence in this case, includes not just physical violence, but also emotional, psychological and sexual violence.

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There has been a series of homicides, murders, suicides and other violent related incidents linked to family law matters reported in the media recently. These seem to suggest the need for greater caution, and more responsible decisions in family law matters. Police now say that divorce and overdue child support payments were at the crux of the multiple murders in Los Angeles recently.

In a multiple murder-suicide that shocked the nation, Ben Freeman killed his wife Jeanne, his ex- mother-in-law and the CEO of a company where he once worked before killing himself. He is accused of having killed his wife in the bathroom in her home, after which he proceeded to drive to his in-laws home where he shot his ex-mother-in-law. He then drove to the house of the CEO of a medical company that employed him earlier, and shot the man. At least three other people were injured in the shooting, before Freeman finally turned the gun on himself.

According to court records, in June, Freeman and his ex-wife reached an agreement on overdue child support payments, going back two years. That same month, Jeanne filed a complaint against Freeman, alleging harassment. He pleaded guilty in October to charges of criminal telephone-harassment charges, based on her complaint. He was sentenced to a $250 fine, or 10 days in jail, and was also put on unsupervised probation for a year.

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Both men and women can be involved in domestic violence. The term domestic violence applies to many different levels of violence that can create a situation that poses a very real danger for the spouse who is being victimized. When these situations arise in California, the victim can seek a domestic violence restraining order against the other partner.

A restraining order can involve both criminal and civil implications for the party who is the assailant. Once a restraining order has been granted by a judge, the order requires the assailant to avoid contact with the victim. A violation of a restraining order can be penalized with jail time.

Domestic violence restraining orders are essential protections for a victim of abuse, but need to be addressed properly by an experienced attorney to ensure the restraining order is granted by the court. A tragic event happened to a California woman that highlights the importance of obtaining a restraining order.

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The San Francisco, California, county sheriff has been sentenced in connection with the domestic violence charges that were filed against him earlier this year. The sheriff was accused of domestic violence in February 2012 after an incident with his wife. The trial for the case has been highly publicized during the proceedings. The sheriff has been convicted and the focus has shifted to the repercussions the sheriff will face because of the conviction.

The California sheriff has been convicted and received a probation sentence of three years. In addition to the probation, the sheriff is also required to attend a year-long anti-domestic violence counseling program, complete community service and attend parenting classes.

The sheriff entered into a plea agreement, which required him to plead guilty to the charge of false imprisonment. In exchange for the guilty plea to the false imprisonment charge, three other charges for child endangerment, domestic violence and dissuading a witness were dropped.