Cyberstalking is highly problematic in many divorces, but it’s especially concerning for victims of domestic violence. What is cyberstalking and what can a spouse do to protect themself from this threat during divorce?

What is Cyberstalking?

Stalking has long been a problem, particularly for divorcing spouses. Since technology has advanced and we’ve entered the digital age, stalking has become largely electronic. Cyberstalking occurs when one individual uses electronic tools such as social media platforms, email, text messages, GPS trackers, and other electronic resources to track, harass, or intimidate someone else. Cyberstalking during divorce occurs for a variety of reasons such as the following:

• A spouse may seek “dirt” on another spouse in order to sway a judge during child custody disputes
• One spouse may be jealous or resentful of the other spouse’s newfound freedom and/or a new relationship and may use cyberstalking to intrude into the other’s privacy
• A spouse may use cyberstalking to ruin the other spouse’s personal or business reputation
• A spouse may attempt to intimidate the other spouse through online threats or abusive comments
• Spouses may use social media platforms to engage in revenge porn
• A spouse may commit identity theft using the other’s information
• An abusive spouse may use cyberstalking techniques to track the other spouse during divorce with the intent of doing them physical or emotional harm

Cyberstalking is a serious crime in California and elsewhere. First offenses are often misdemeanors with up to $1,000 fines unless they involve criminal violence. Further convictions of cyberstalking become felony offenses with up to five years imprisonment. When connected with domestic violence, convictions include longer prison sentences and possible registry as a sex offender.

Protecting Against Cyberstalking and Domestic Violence During a Divorce

If a cyberstalking ex-spouse becomes threatening or abusive, especially a spouse with a history of domestic violence, it’s critical to speak to your San Francisco divorce attorney about obtaining a domestic violence restraining order for protection. A temporary restraining order is the first level of protection against threats, intimidation, and physical abuse. Divorcing spouses should also take the following steps to protect themselves against cyberstalking:

• Change passwords on all accounts, including bank accounts, social media accounts, email, and electronic subscriptions and streaming platforms
• Increase privacy settings on social media or temporarily shut down social media accounts
• Block calls and texts from your ex and demand that they communicate through your attorney
• Document all threats and intimidation

When a spouse engages in cyberstalking and other threatening behaviors, it may be used against them in custody disputes as evidence of instability. Evidence of cyberstalking shows that continued close contact between the cyberstalking spouse and the children in the case may not be in the children’s best interests.

Speak to your Irvine family law attorney about the threat of cyberstalking in your divorce case.

How Does California Define Domestic Abuse?

Domestic abuse typically refers to the abuse of one spouse or domestic partner by the other. California law considers domestic abuse to be any reckless or intentional behaviors that cause physical or emotional harm to a spouse or a partner in an intimate relationship, or threats of physical harm to a spouse or partner.

Examples of domestic abuse include the following:

• Physical violence and abuse
• Emotional and verbal abuse
• Sexual assaults
• Stalking
• Harassment
• Threats and intimidation
• Intentionally isolating a spouse by monitoring/restricting movement
• Depriving a spouse of necessities
• Limiting a spouse’s access to financial resources
• Coercive control over a spouse

While domestic violence is certainly grounds for divorce, California is a no-fault divorce state so spouses need only cite irreconcilable differences to obtain a divorce. This makes it easier for abuse victims to navigate the divorce process without having to relieve details and speak about their experience in court.

How Does Domestic Abuse Impact Divorce in California?

California Penal Code §273.5 makes all forms of domestic abuse illegal in California. Victims of this type of abuse may request a restraining order and have the option to file criminal charges against their abuser. An experienced divorce attorney in California can help victims of domestic violence gain a restraining order when filing a petition for divorce or responding to a divorce petition from a spouse.

If a spouse has a history of domestic violence, it impacts the following aspects of divorce:

• Child custody: California courts decide all family law matters in the best interests of children. When one spouse has a documented history of domestic abuse, the judge may limit or restrict their access to the children, especially in cases of abusive behavior against the children or against a spouse in the presence of the children. Any living situation involving violence is not in the best interests of children.
• Spousal support: Spouses who’ve been the victim of domestic abuse do not have to pay spousal support payments after a divorce.
• Property division: Depending on the unique circumstances, a judge may award an abused spouse a greater share of the community assets

It’s also important to understand that false allegations of domestic violence against a partner as an attempt to sway the judge in child custody cases can result in perjury charges and may negatively impact the false accuser’s share of child custody and property distribution.

Legal Guidance and Protection Is Available for Victims of Domestic Abuse in California

Victims of domestic abuse may face an increased safety risk during the emotionally fraught divorce process. An Orange County family law attorney offers critical guidance for victims of domestic abuse.

What Does the Court Consider as “Domestic Violence” in Child Custody Cases?

When a court finds that a parent in a custody case has committed domestic violence the term could refer to any of the following actions:

• Caused or attempted to cause bodily injury to another within the home
• Committed sexual assault
• Threatened, harassed, or destroyed the other spouse’s personal property
• Willfully disturbed the peace of another or placed another in reasonable apprehension of imminent violence against them

It is not in a child’s best interests to reside with parents who perpetrate any form of domestic violence.

Determining That a History of Domestic Violence Exists

Before a judge takes a history of domestic violence in a family into consideration when deciding child custody and parenting time for divorced or non-married parents, they first must determine that domestic violence exists in the case. To make this determination, a judge considers the following:

• Was one parent convicted of domestic violence against the other or a child’s sibling within the last five years or did they plead guilty or no contest to the charges?
• Has a court decided that a parent in the case committed domestic violence against the other or against the children?
• Did a court grant a restraining order against a parent in a custody case due to abuse or threatening behavior?

Special laws (3034) apply in California child custody cases once a judge determines that one parent has committed domestic abuse against the other, against a child, or against a child’s sibling. The judge must rule within the guidelines of these special laws which specify that awarding sole or shared custody to a parent who commits domestic abuse is not in the best interests of a child. This legal presumption is rebuttable—meaning the accused parent may defend themselves in court by showing evidence demonstrating by a preponderance of the evidence that the accusations are false or that continued close contact with the parent is in the child’s best interests.

What Types of Evidence Can a Parent Use in Child Custody Cases in Which Domestic Violence Plays a Role?

Although family courts in California presume that awarding sole or joint custody to a parent with a known history of domestic violence is not in a child’s best interests, the court hears any and all testimony and considers any relevant evidence when making a custody decision including any of the following:

• Whether or not the parent has successfully completed an alcohol or drug treatment program
• Whether or not the parent successfully completed a treatment and counseling program for batterers
• If the parent successfully completed an appropriate parenting class

The court may also consider evidence such as a parent’s willingness or unwillingness to abide by parole terms and restraining orders.

If a judge overturns the presumptive decision that placing a child into sole or joint custody with a parent with a prior domestic abuse conviction or no-contest plea, they must explain their reasons for overturning the presumption with specific findings.

Has Domestic Violence Occurred in Your Home?

If there’s been domestic violence within your home and the violent parent has a prior conviction or entered a plea of guilty or no contest, it’s unlikely that the court will decide that sole or shared custody with the offender is in the child’s best interests; however, it’s essential that both parents in this situation retain experienced legal counsel.