One of the toughest components of practicing family law involves handling domestic violence issues. Domestic violence issues are by far the most serious, emotionally charged, and costly components of any divorce or child custody case. The consequences are often literally “life or death” for the victim(s).
The California Family Code provides that if the Family Law Court makes a finding that one party has “perpetrated domestic violence” against the other party, there is a rebuttable presumption that joint or sole legal custody of the minor children for the party that committed the violence is detrimental to the best interests of the child.
There are other provisions in California that can affect the rights of a party that has been found to have perpetrated domestic violence regarding spousal support and payment of attorney’s fees and costs by the other party. Other states have similar approaches to the issue.
As a result of the apparent “litigation benefits” of domestic violence findings, many desperate family law litigants will unfortunately use a domestic violence claim as a “weapon” in order to gain an advantage in the other areas of their family law case. Astute family law judges are aware of this and, as a result, look at many parties' domestic violence claims with a “healthy degree of skepticism.”
If someone is involved in a legitimate domestic violence incident, they must do all of the “right things” to avoid any sort of misconception that their claims are anything other than sincere and warranted under the circumstances. Accordingly, it is imperative that they must do all of the following to preserve the authenticity of their domestic violence claims once they step into the courtroom.
This first step may seem obvious, but if it is overlooked, it can drastically undercut the credibility of a domestic violence claim. If a person is being victimized and they have access to a telephone, their very first call must be to 9-1-1/Emergency Services from a safe location. If they happen to call a friend, family member, or other relative before they reach out and seek police assistance, then the entire claim can be perceived as disingenuous in the sense that their actions and delay demonstrate that they are not afraid for their safety.
During the 9-1-1 call, it is imperative that the victim speak clearly and slowly. Not only will this help the operator take down the vital information, but it will create a clear recording of the call that can be used as evidence in the courtroom. It is often advisable for the victim to go beyond the basic questions and explain to the operator all of the facts and circumstances pertaining to the incident (even if they are not asked directly). Again, the purpose is to document the incident on the audio recording.
Once this is done and the police are on the way to the scene of the incident, then other calls can be made. Typically, the second phone call should be to the victim’s family law attorney.
Once the police arrive and secure the scene of the incident, it is imperative that they create an incident report that documents what took place. To do so, the police need to have cooperation from the victim who will tell his/her full account of what took place.
While the police report itself may or may not be admissible as evidence in the courtroom, it is a vital tool that the police officers will rely upon in order to refresh their recollection of what took place in the event that they are called to testify. Remember, while the incident may be a life-changing event for the victim that he/she will never forget, it can be a rather unremarkable event for a police officer who handles many such incidents on a daily basis. (I can’t tell you how many times I have examined a police officer and he/she cannot remember a single detail about the incident other than what is set forth in the police report.)
Finally, it is very important that the victim obtain all information that is available about the police officers. I always recommend that the victim ask each officer for his/her business card, badge number, business telephone number, cellular phone number, the location of the station where he/she regularly works, and a rough idea of his/her work schedule. Without this information, it can be very difficult to track the officer(s) down after the incident is over.
In California, a victim of domestic violence can ask for a very temporary restraining order, known as an Emergency Protective Order (EPO), to be put into place immediately. An EPO can last for several days in order to allow the victim adequate time to go to Court in the event that the incident occurs after hours, on the weekend, or during a court holiday. The victim must ask for an EPO no matter what. At the very least, asking for it demonstrates the sincerity of the victim.
The victim must go to the family law court as soon as possible to seek a temporary restraining order (TRO). If the incident occurs during court hours on a weekday, the victim may be able to go into court the very same day. If not, they should plan to go into court the very next morning. Any delay in seeking a TRO can and will be used against the victim as evidence of insincerity.
The TRO can provide the victim with a number of things, including an order requiring the other party to stay a certain distance away, orders governing the personal conduct of the other party, orders requiring the other party to vacate the family residence, etc. However, these orders are only temporary.
The TRO should be registered with the local law enforcement authorities in whatever system they have in place. I always recommend that the client should also have at least three copies of the TRO with them before they leave the courthouse: one for their home, one for their car, and one to give to a friend or neighbor. This way, they have copies handy in case the other party violates the TRO and the police need to be involved again.
After a TRO is issued, the Court will likely set a return hearing in the near future when it will conduct a live evidentiary hearing (similar to a trial) to determine whether the TRO will be extended into a more permanent order. To do this, the Court will need to receive testimony and documentary evidence to substantiate the need for such a long-term order.
Each state has different rules and procedures, but it is almost always helpful to substantiate testimony with photographs, copies of communications, medical reports, recordings, and/or any other evidence documenting the incident along with any prior incident(s) of domestic violence.
In many instances, the local district attorney will be involved and may elect to pursue criminal charges against the other party. If that happens, it is imperative that the victim be fully cooperative with the district attorney.
If you are facing domestic violence issues, you must contact a family law attorney or the self-help section of the family law courthouse to assist you in connection with your claims.