Restraining Orders
Domestic violence is a problem in our country. Men and women across these great United States are accused every day of committing domestic violence. Domestic violence can be both a criminal act and a civil wrong. If deemed a criminal act the prosecuting attorney in the particular county in which the domestic violence occurred may a file a criminal complaint against the perpetrator of domestic violence and charge him or her with the criminal offense of domestic violence. The criminal charge could be a misdemeanor or a felony depending upon the nature of conduct and the severity of the injuries the victim sustained. It is very important if you have been charged criminally of having committed domestic violence to immediately seek the advice of an experienced criminal defense attorney who can assist you and help you defend yourself against these criminal domestic violence charges. Nathan James can refer you to an experienced criminal defense attorney who can assist you in defending yourself against criminal charges.
In California, there also exists statutes contained in the California Family Code (Family Code #6200, et. seq.), that defines conduct that constitutes domestic violence and the consequences if someone is found to be the perpetrator of domestic violence. Allegations that someone committed domestic violence are very serious. Domestic violence has an effect on the victim physically, mentally, and emotionally. The victim is likely to be a wife or husband of the perpetrator, or a current or former boyfriend or girlfriend of the perpetrator, or a child of the perpetrator. If the allegations of domestic violence are untrue, this can cause the alleged perpetrator to expend literally thousands of dollars defending himself or herself against these allegations.
In California divorce and family law cases, where the parties have minor children and child custody is an issue, domestic violence can be the tail that wags the child custody determination dog. In California child custody divorce or family law cases, there is a preference that the parents be awarded joint custody of the children. In a California child custody divorce or family law case where a parent has been found to have committed domestic violence, California Family Code #3044 contains language that states to the effect that joint custody is not in the child’s best interest. Thus, what occurs many times after a finding of domestic violence in a California child custody divorce or family law case, is a judge denying joint custody to the parent who is found to have committed domestic violence. The finding of domestic violence in a California child custody divorce or family law case can have far-reaching consequences with regard to child custody and visitation. Litigants in California child custody divorce or family law cases sometimes use allegations of domestic violence as a way to leverage custody and visitation as well as dividing property. Many times, allegations of domestic violence and any defenses raised to allegations of domestic violence, are a “he said, she said” case, meaning that there is very little evidence other than what she said happened or what he said happened. Nonetheless, alleged perpetrators of domestic violence, when the allegations are not true, find themselves in a position of having to either spend great amounts of time, effort and potentially significant expense defending themselves, without knowing what a judge might find after a trial; or, forgo a trial on the domestic violence charges and try to make the best possible child custody and visitation deal he or she can negotiate and make.
If a person has been found to have committed domestic violence in violation of the California Family Code domestic violence statutes, the court will likely issue a restraining order against the perpetrator, which among other things could prevent or prohibit the perpetrator from contacting the victim, being within a certain distance from the victim, and other limitations on personal conduct. The court in a California domestic violence action, if domestic violence is found to have occurred, may order the perpetrator to attend anger management classes which can be expensive and time-consuming. The court may also order the perpetrator to move from his or her residence if it is shared with the victim. In a California domestic violence case, if a restraining order is issued and the perpetrator violates that order, the court could order the perpetrator to spend time in jail for violating the restraining order.
Nathan James of SEIFER, MURKEN, DESPINA, JAMES and TEICHMAN, ALC has a vast array of experience defending individuals, through trial, in California divorce and family law cases accused of committing domestic violence. Nathan James has also filed petitions for restraining orders on behalf of domestic violence victims. Because the general nature of domestic violence allegations and defenses are usually a “he said she said” scenario, it is very important from the . minute the alleged perpetrator or victim of domestic violence comes into the attorney’s office to start the evidence gathering process so as to support the allegations or the defense. If you entrust your California domestic violence divorce or family law case to Nathan James he will take the necessary steps to make sure that your rights are protected.
The California Family Code defines domestic violence as abuse perpetrated against a spouse, former spouse, cohabitant, or former cohabitant. Abuse inflicted by one’s current or former dating partner or fiancé may also constitute domestic violence, as is abuse committed against the parent of a child by the other parent. California also extends its recognition of domestic violence to abuse committed by extended family members, provided the abuser and the victim are related in the second degree by either blood or marriage.
Abuse is defined as intentionally or recklessly causing or attempting to cause bodily injury; sexual assault; to place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; to engage in behavior (i.e. stalking, continuously telephoning, emailing, etc. which constitutes harassment) that has been or could be enjoined. Abuse is not limited to the actual infliction of physical injury or assault. “Disturbing the peace” of another—by sending endless emails--may constitute domestic violence. Nathan James of SEIFER, MURKEN, DESPINA, JAMES and TEICHMAN, ALC can provide the requisite legal counsel and help you through the complicated terrain of a California domestic violence divorce or family law case.
The California Domestic Violence statutes are specifically drafted in order to prevent abuse between family members, household members and dating or formerly dating couples. These California Domestic Violence statutes also protect both same-sex and opposite sex couples. The most common remedy sought by a domestic violence victim is a restraining order prohibiting certain conduct the perpetrator of domestic violence has committed, so as to prevent future abuse. A parent may apply for a domestic violence order on behalf of his or her child. Further, if a child is 12 years or older he or she may appear in court independently and seek a restraining order.
Victims of domestic violence should report the conduct of the perpetrator to the police or other law enforcement agency. The police or personnel from other law-enforcement agencies should then interview the involved individuals. If abuse is alleged to have occurred and future abuse is imminent, the police can issue what is known as an Emergency Protective Order, which is issued by the court because of the emergency of the situation. The Emergency Protective Order is good for five business days after it was issued and not for more than seven calendar days. Thereafter, and within the 10 days of the Emergency Protective Order, the victim should apply for a Domestic Violence Restraining Order from the family law court.
Protective orders enjoining domestic violence in family law matters may be issued by the court on an ex parte basis (where only the alleged victim appears before a judge). The alleged victim will need to prepare and submit a declaration, sworn to under penalty of perjury, that contains factual allegations that sets forth reasonable proof that an act of abuse occurred. The court can then issue what is commonly known as a Temporary Domestic Violence Restraining Order. If the court issues a Temporary Domestic Violence Restraining Order, that order is good for 20 days and a hearing is usually set within that time period. The Temporary Domestic Violence Restraining Order and the Notice of Hearing must be served on the alleged perpetrator. There will then be a hearing and if the court, based on the evidence and testimony presented at the hearing, finds domestic violence has occurred, the court will determine whether a permanent restraining order should be issued and the duration of the permanent restraining order. Permanent Domestic Violence Restraining Orders may be issued for up to five years. They can also be renewed for up to five years as well. California Domestic Violence Restraining Orders may enjoin (prohibit) the perpetrator from returning to his or her home and other specific acts of conduct that constitutes abuse under the California Domestic Violence Prevention Act.
Aggressive Representation For Serious Domestic Violence
Allegations And Emergency Issues