Domestic Violence – Is It or Isn’t It?

California Family Code sections 6203, 6211 and 6320 define abuse, essentially, as your spouse, former spouse, partner or the parent of your child causing, or attempting to cause, you or your children reasonable fear of imminent bodily injury. In layman’s terms, abuse may consist of, for example, beating, cutting, kicking, threatening, stalking or raping you or your children. If any of these actions have recently been taken against you or your children, then call the police immediately! Do not wait, period! When the police arrive, determine whether you need an Emergency Protective Order. Write down the names and contact information for the officers because they may need to testify in your case. Follow the advice of the police officers closely.

Go to a hospital or doctor’s office, and get examined to make certain you and/or your children do not have any broken bones or internal injuries. It is crucial that you set up an appointment with a family law attorney within a day of the incident to determine whether you need a Temporary Restraining Order. If you have been given an Emergency Protective Order by the police, keep in mind that these Orders expire within a few days so it is in your best interest to meet with a family law attorney the next business day to make certain you are protected. If you do not have the money to hire an attorney, do not let this stop you. Go to your local court and get help completing the forms on your own.

Take pictures of any items in your home that were damaged during the incident(s) of abuse. Keep and print out any threatening e-mails, text messages, social media posts or other forms of communication from the abuser. Use these pictures and correspondence to support your case. If you feel like you and/or your children are not safe in your residence despite Emergency Protective Orders or Temporary Restraining Orders then you may need to check into a Domestic Violence Shelter.

It is not uncommon for victims to refrain from calling the police and securing the necessary Emergency Protective Orders or Temporary Restraining Orders because of threats from the abuser such as: “you call the cops on me and they will take our kids away from us and put them in foster care,” “without me you will not be able to support yourself,” or “if you get a restraining order against me, then I will not be able to work and you will not get any money.” While these statements may have some truth and significance, so does your life. It should not be too hard to figure out that your friends and family can provide you with some financial support as you transition from separating yourself from the abuser. Further, if your children are taken into foster care the situation is likely only temporary and they are learning that domestic violence is not okay and has serious consequences; so, they likely will not repeat the cycle.

I want to take a moment and talk about the California Law Enforcement Telecommunications System, also known as CLETS. If you secure restraining orders against the abuser, then his or her name gets entered into what is called the CLETS system. When the abuser applies for a job and a background check is run, the restraining order may show up and may interfere with the ability to secure work, especially if the abuser is in a position of public trust. However, if given the choice of ensuring your personal safety, and perhaps your life, by securing restraining orders versus whatever financial security you have by staying with the abuser, not getting these orders, and risking being injured again, I think the right decision is obvious. This is especially true if you have children who are watching the domestic violence or, worse, are victims and nothing is being done; they are essentially learning that domestic violence is “okay,” right? Wrong!

It is not uncommon for family law clients to want restraining orders because they are being “called names,” or, as some like to call it, “emotionally abused.” Neither of these are likely grounds for domestic violence. “Financial abuse” is another reason sometimes given by family law clients for seeking restraining orders. Often, family law clients define “financial abuse” as where the alleged abuser will not give the alleged victim money, period, or unless certain acts are carried out. Financial abuse is likely not domestic violence. Some family law clients even make up stories about incidents of domestic violence just to get ahead in the child custody battle or to get the alleged abuser out of the family home. Incidents of domestic violence that happened years ago are sometimes also given as a basis for requesting restraining orders. While these previous incidents are important to show a pattern if a recent incident of abuse has taken place, they are likely not enough on their own, absent more recent incidents, to secure restraining orders.

The California Family Law code is clear on what constitutes Domestic Violence. Run “name calling,” “emotional abuse” or “financial abuse” by an attorney anyway; more than likely, with a few possible exceptions, you just have another good reason to terminate your relationship and seek out some counseling. You may also have what is commonly called a “high conflict” family law case, and there are ways to manage such a case that you should discuss with a family law attorney.

Keep in mind when you are adamant that you want restraining orders based on “name calling,” “emotional abuse,” “financial abuse” or to get ahead in the child custody battle: California Family Code section 6344 clearly states that the prevailing party may seek attorney’s fees and costs, which means that if you lose your request for a restraining order then you may have to pay the attorney’s fees and costs of the alleged abuser. Bottom line, with a few exceptions, if more than your feelings and pride are hurt then call the police immediately and pursue a restraining order.

This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this blog should be acted upon without first consulting with an attorney. Should you have questions about the content of this blog, please arrange to discuss via a consultation.