Family Law Perspective

Note: All articles in this edition refer to the Guest Editor’s column found here.

ELAINE:

Elaine contacts an attorney to discuss this situation and is advised to file for a restraining order under Family Code section 6220 otherwise known as the Domestic Violence Prevention Act. Given the facts of this case, the court would most likely grant a temporary restraining order giving Elaine sole physical custody of the children and exclusive use of the family home pending the hearing on the motion. Although Elaine may explain to her attorney that they were both drinking and this only happened once and she does not really want a divorce or to kick him out of his house, her attorney would respond that the primary concern is for the safety of the children. Elaine has a duty to protect them from abuse, otherwise the court could remove them from the home if they find she is not protecting the children.  In addition to the restraining order, Elaine would likely request that Stefan enroll in anger management classes, counseling and substance abuse treatment since alcohol was a factor in this incident.    Since both parents were drinking and yelling at the children and each other, Elaine would also be advised to get counseling to deal with her anger and alcohol issues and to enroll in parenting classes.

STEFAN:

Stefan is served with the temporary restraining order and retains a family law attorney to represent him at the hearing. Since criminal charges have been filed against Stefan, it is important to communicate with his criminal attorney to discuss how to proceed. Since any statements made by Stefan at the hearing, in a response filed to the TRO or in meetings with Family Court Services mediators or Child and Family Services, could be used against him in the criminal action, the best approach is to advise Stefan not to discuss this matter with anyone other than his attorneys and to continue the hearing on the TRO until after the criminal charges have been resolved. Even though the TRO will remain in effect pending the hearing, his attorney could request for Stefan to have supervised visitation with the children (assuming they are not afraid of him) so they will not have to go several weeks or months without seeing their father. Any discussion of the pending actions would be strictly prohibited and the visitation supervisor would be present at all times to ensure the children’s safety. The family law attorney would need to work closely with the criminal attorney in this matter since any finding of domestic violence (including a plea of nolo contendere) in the criminal case or family law matter can have long term effects on child custody—Family Code Section 3044 provides that a finding of domestic violence creates a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. In determining whether the presumption has been overcome, the court can consider several factors including whether the perpetrator (Stefan) has completed a batterer’s program, treatment for alcohol or drug abuse and parenting classes. In this case, Stefan would be advised to immediately enroll in these programs so he will have evidence to rebut the presumption against joint custody. Even if Stefan avoids a criminal conviction, since Family Code Section 3044 only requires a “finding,” the incident, including the issuance of the restraining order, would probably be sufficient to trigger the presumption against joint custody.

OTHER CONSIDERATIONS: If Elaine decides to file for divorce, this incident of domestic violence has a significant impact on both temporary and permanent spousal support. In making an order for spousal support, the court must consider all relevant factors set forth in Family Code Section 4320. Family Code Section 4320 (i) and 4320(m) both include domestic violence as a factor to consider in awarding spousal support. Family Code section 4320(i) states: “Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.”  Family Code section 4320(m) provides that “the criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.”  Under this situation, even if Stefan avoids a criminal conviction of domestic violence, pursuant to 4320(i), the court can consider documented evidence of the domestic violence which needs only be proven by a preponderance of the evidence. Assuming Stefan is the payor of spousal support, the amount and duration of spousal support owed to Elaine would be impacted by this incident. The court would consider the cost and time needed for counseling and the impact the domestic violence would have on Elaine’s ability to work and become self supporting.  Since Elaine and Stefan have been married for 10 years, this is a long-term marriage and the court would not order a termination date in this case.

If Elaine is determined to be the payor of spousal support in this case, the criminal conviction of an abusive spouse, in this case, Stefan, would create a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse that would otherwise be awarded, should not be made, or should be reduced.  (See Family Code Section 4235.)  Thus, a criminal conviction in this matter would have an impact on Stefan’s ability to receive any spousal support from Elaine.

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