Whether you are the victim of domestic violence or you have been accused of domestic violence it is a serious matter and you should seek the help of an attorney who understands the consequences for both victim and accused.
A request for a Temporary Restraining Order (TRO) can be filed in connection to a dissolution, paternity, custody case, or on its own. The law regarding domestic violence is called the Domestic Violence Prevention Act (DVPA) (Fam C §§6200–6409) and may be filed at any time.
Many studies have indicated that the most dangerous time for a victim of abuse in an intimate relationship is when he or she leaves the relationship. Some victims of domestic violence experience violence only after they file for dissolution. If you are afraid that your partner might harm you if you try to leave a relationship you should consult an attorney so you can be protected.
A person has “perpetrated domestic violence” when he or she is found by the court to have done any of the following:
- Intentionally or recklessly caused or attempted to cause bodily injury or sexual assault;
- Placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another;
- Engaged in behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another.
A showing of the probability of future abuse is not required to issue a DVPA restraining order. Rather, a trial court may issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse.
Domestic Violence and Custody
A custody dispute, a restraining order can have extremely severe consequences for a party accused of the children or the other parent. A TRO and a permanent Restraining Order severely limit the contact between the parent and child, and, if that parent had been the primary custodial parent, the noncustodial parent could find him- or herself in a position to be granted sole physical custody.
If a court makes a finding of domestic violence and issues a domestic violence restraining order at a hearing requesting a modification of child custody, it is virtually guaranteed that the abusive parent will lose a significant amount of their rights regarding parenting the child. Practically speaking, the only contact that such a parent could expect would be supervised visitation, because the “best interest of the child” does not allow any kind of domestic violence to endanger the child. The threat of a domestic violence restraining order is powerful and could have a significant impact on a custody order or parenting plan.
Domestic Violence and Spousal Support
In ordering spousal support, one factor that carries significant weight is documented evidence of any history of domestic violence, as defined in Fam C §6211. The violence can be against the other party or against the child. This includes consideration of:
(1) emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party,
(2) any history of domestic violence between the parties or perpetrated by either party against either party’s child, and
(3) any history of violence against the supporting party by the supported party. Fam C §4320(i).
Temporary and permanent spousal support may be denied when there is documented evidence of a history of domestic violence by the party seeking support against the other party. Fam C §§3600, 4320(i), (m), 4324.5; The termination of spousal support awarded previously may be proper under Fam C §4325, even in the absence of changed circumstances.