Family Law Rights and Protections for Domestic Violence Victims and Survivors

Family Law Rights and Protections for Domestic Violence Victims and Survivors

Unfortunately, domestic violence is all too common in relationships. Intimate partner violence can afflict any romantic relationship – abuse can happen whether you’ve just been on a single date, you live together, or you’re engaged, married, or even divorced.

Under California law, domestic violence doesn’t have to be physical to count as abuse. Victims and survivors do not need to show physical injury to prove domestic violence. Intimate partner violence could take the form of emotional or verbal abuse, psychological intimidation, stalking, isolation or deprivation of basic needs, or financial control.

If you’ve suffered domestic violence at the hands of a romantic partner, you’re not alone. There are laws and protective orders to keep you and your children safe from your abuser. These laws will also help protect you and your family if you’re facing a divorce, property division, spousal support, or child custody issue against a violent partner.

What Laws Protect Victims?

The California Domestic Violence Prevention Act (DVPA) under the California state Family Code defines abuse and what counts as a domestic relationship. The law also lays out how protective orders can be used to shield victims of domestic violence from further abuse.

Domestic violence victims can file a Domestic Violence Restraining Order (DVRO) to protect themselves and their children against an abuser. Types of restraining orders include:

• An Emergency Protective Order (EPO) can only be filed by law enforcement contacting a judge on your behalf. Judges are available 24 hours a day, every day of the year – so a public officer who responds to a domestic violence incident at any time of day or night could file an emergency protective order for a victim. The terms of an EPO become active immediately and can last up to 7 days. In an EPO, the judge can order a domestic abuser to leave the home they share with the victim and their children.
• An EPO gives you the time you need to file a Temporary Restraining Order (TRO) by submitting the paperwork with your local court. In your petition, you would describe all the reasons why you need protection. If the judge is convinced, they can issue a TRO with similar restrictions as the EPO. The TRO terms could last between 20 and 25 days until a scheduled hearing where both parties can present their cases to the judge.
• If you make a compelling case why you need protection at your TRO hearing, the court can grant you a “Permanent” Restraining Order that lasts up to 5 years. As soon as the restraining order runs out, you can petition the court for another.
• An Automatic Temporary Restraining Order (ATRO) activates as soon as you file for divorce in California. You don’t have to file for this restraining order separately. Under the rules of an ATRO, neither spouse may take any major actions related to their children, insurance policies, non-probate transfers, or property until the divorce is finalized.
• A Criminal Protective Order or “Stay-Away” Order can be filed by your local District Attorney’s office if they bring criminal charges against your domestic abuser. This restraining order remains active as long as the criminal case continues and for 3 years after the case is over if the defendant pleads guilty or is found guilty by the court.

If you’re able to get a restraining order against your spouse based on domestic abuse, you can bring it up in your divorce, child custody, or property division cases as evidence.

How Do You Prove a Domestic Violence Case?

Proving domestic violence isn’t always easy. Most people don’t see what goes on behind closed doors so you may not have any witnesses other than yourself and your abuser. That’s why it’s important to try to record or write down every incident of violence that you or your children experience. Photos, videos, and even timely statements you made to friends could help.

Judges will also take into consideration as proof:

• Any law enforcement records of the incidents
• Documents from Child Protective Services or social welfare agencies
• Medical exams, diagnoses, or testimony from medical professionals

Your domestic abuser does not have to be convicted of a crime for a family law court to consider abuse as part of your divorce or child custody hearings. The burden of proof to demonstrate domestic violence is lower in family law cases compared to criminal cases.

To get a domestic violence restraining order, you must:

• Identify the parties involved and the reason you’re requesting an order, and
• Submit a written Declaration describing the domestic violence you experienced.

For a temporary restraining order, you must simply show that there is reasonable proof of abuse. The standard is higher for a permanent restraining order, where you must convince the court by a preponderance of the evidence (or at least a 50% chance) that abuse occurred.

Hearings for temporary restraining orders often happen “ex parte,” meaning the abuser might not even appear in court. For a permanent restraining order, the person accused of domestic violence has the chance to defend themselves at the hearing.

How Can Domestic Violence Affect Your Family Law Case?

Normally, California is a no-fault state when it comes to divorce – the reasons behind a couple’s breakup aren’t important so long as they’re suffering “irreconcilable differences.” However, California judges will take domestic violence into account in divorce cases, alimony or spousal payment disputes, and child custody and child support issues.

If you’re able to prove domestic violence in your family law case:

• You won’t have to pay alimony or spousal support to your domestic abuser
• You may get a greater portion of your joint (community) assets to offset the harm and medical bills you suffered because of their abuse
• The abuser may lose custody or unsupervised visitation rights because California courts make decisions in the “best interests of the child” and violence goes against that interest

Although California law exists to protect victims of domestic abuse, the legal process can still be confusing and intimidating. Family law cases and restraining order filing have short and strict deadlines that can feel overwhelming. A good family lawyer can help simplify the process for you with the utmost discretion that your case needs.