The fact that domestic violence causes physical injuries, dysfunctional families, and broken relationships is well known. However, unless you have been paying close attention to the legal developments related to this topic, you are probably unaware that there has been a radical change in the way our legal system deals with domestic violence.
Ever since our society's attitude toward domestic violence began to change, numerous laws have been enacted every year that specifically address domestic violence within our state and our federal statutes. As a result, the consequences of committing or being accused of committing domestic violence are also growing. The following list illustrates some of the severe consequences associated with domestic violence cases:
1) Enhanced jail or prison time, fines, the completion of a fifty-two week batterer's treatment class, and the issuance of a criminal protective order.
Our criminal justice system now deals with domestic violence as a unique offense. Domestic violence is no longer treated as a simple battery. Consequently, our system imposes enhanced and specialized sentences for these offenses.
2) The loss of employment opportunities.
One of the most serious consequences of domestic violence is the stigma that is attached to these crimes. With a conviction of domestic violence on one's record, it can be very difficult to obtain employment in certain types of occupations, especially jobs within government.
3) The denial or revocation of a state license to engage in a particular type of business.
An allegation of having committed domestic violence can also make it difficult for a person to obtain or maintain a state issued license, such as a license to sell real estate or a license to work in or operate a care facility.
4) The issuance of a criminal and/or family law restraining order.
Restraining orders are issued by criminal and family courts routinely where there are allegations of domestic violence. An obvious consequence to these orders is the loss of liberty, to the extent the order forbids the restrained party from going to certain locations.
5) The loss of the right to possess firearms.
When a restraining order is issued, it is automatic that the offender shall be restrained from owning or possessing a firearm. This restriction is particularly burdensome to people with occupations that require the possession of handguns.
6) The loss of immigration status.
A conviction for domestic violence can result in the loss of a person's immigration status. This loss of immigration status will occur, even if a person convinces the court to allow him or her to withdraw a plea of guilty upon successful completion of an anger management program.
7) An increase in the amount of spousal support paid.
The occurrence of domestic violence in a relationship is one of many factors the court must consider when ordering spousal support. Consequently, a perpetrator of domestic violence is more likely to be ordered to pay additional spousal support.
8) The loss of the right to collect spousal support.
In California, a person who is found to have committed domestic violence may lose his or her opportunity to collect spousal support.
9) The loss of child custody or visitation rights.
A major factor the court must consider in determining custody and visitation rights is whether or not there has been domestic violence within the relationship. Courts are particularly sensitive to this issue when considering the best interests of the minor children.
10) An automatic extension to a foreign spouse and his or her children to remain within the country and an increased obligation to support them.
In cases where foreign spouses make allegations of domestic violence against their spouses who are sponsoring them, the foreign spouse will be granted an automatic extension to his or her right to remain within our country. When this happens, the sponsored spouse's obligation to support the foreign spouse and his or her children is also extended.
11) A civil lawsuit by the victim spouse.
Victims of domestic violence can file civil suit against their abusers. These lawsuits can result in awards of large compensatory and punitive damages.
12) An unequal division of property.
California law authorizes family law courts to award a spouse the other spouse's interest in community property as payment for any damages awarded to the victim spouse pursuant to a civil lawsuit judgment.
13) A crime of moral turpitude.
Domestic violence is considered a crime of moral turpitude. Consequently, when a person has a conviction for domestic violence on his or her record, his or her credibility can be called into question when testifying.
As one can see, the price paid for committing domestic violence, or in some cases, merely being accused of it, can be quite severe. How these consequences can affect personal relationships has yet to be seen.
I came to this reality after receiving a phone call from a friend of one of my clients, informing me that my client had been severely beaten by her ex-husband during an exchange of their two children in the courtyard of the local police department. My client is currently in intensive care and is unconscious. I am told by my client's family members that her jaw is broken, her left ear was almost severed off, and she suffers from swelling of her brain. The doctors do not know if she will regain consciousness or suffer permanent brain damage.
As you can imagine, this news was devastating to me, as I care very much for my client who I established a close relationship with during the past three years of representing her in her divorce and subsequent child custody battles. I have been agonizing over my work on this case, wondering if I did everything I could do to protect her.
I was hired by my client three years ago. Early in the proceedings my client obtained a permanent restraining order against her ex-husband. The ex-husband and my client had been married and living together, when he tied her up and beat her while the children were in the house. The ex-husband was arrested and he plead guilty to felony domestic violence. This was the end of the marriage, but only the beginning of a long and drawn out custody battle.
During the marriage, the ex-husband could not keep a job, and by default, he stayed at home and watched the kids while my client worked ten hours a day to support the family. I will spare you the details, but I can assure you that the ex-husband was not a model father. In his attempt to gain primary custody of the children, the ex-husband argued to the court that he had a strong pre-existing relationship with the children, and it was in the children's best interests for him to continue as their primary caretaker. As to the domestic violence charges, the ex-husband claimed that the incident was an anomaly and he had learned his lesson by taking court ordered domestic violence classes.
The child custody evaluator and the court ultimately disagreed with the ex-husband and granted my client sole legal and physical custody. The restraining order was extended, and the ex-husband was given visitation with the children a few hours during the week. The Judge also ordered that all transfers of the children were to be in the lobby of the local police station.
In preparation for our trial on the custody issue, I reviewed the transcript of the deposition I took of the ex-husband two years prior. I was reminded by how disturbed the ex-husband appeared and the amount of anger he demonstrated towards my client. There was something about his face (especially his eyes) that told me he was crazy and out of touch will reality. During the deposition, the ex-husband blamed my client for breaking up the marriage and declared that she had baited him into committing domestic violence against her so that she could gain the upper hand in the custody battle.
At trial, I relied heavily on the deposition transcript while cross examining the ex-husband and he eventually became unglued. The man's insanity and hostility surfaced once again. By the end of the hearing, the Judge was able to see the real nature of the ex-husband and ordered limited visitation. The Judge also ordered that the ex-husband attend serious counseling before his visitation could ever be expanded.
As I was leaving the courtroom I was happy for my client, but I had a weird feeling that, in spite of my best efforts and in spite of the fact that we were victorious by convincing the Court to extend the restraining orders and order that the exchanges were to take place inside the lobby of the police department, that the ex-husband still posed a danger to my client. In view of the subsequent brutal beating the ex-husband committed upon my client, I now know that my intuition was correct.
During the beating the ex-husband repeatedly pounded my client's head against a planter, as their two children watched while sitting in their car a few feet away. The ex-husband was eventually stopped by a bystander and he was arrested and charged with attempted murder. The children are in the care of my client's parents. We are all praying that my client will recover.
Did the system fail? Could this brutal second attack have been prevented? Was there something else I could have done? I don't know. However, I have a few suggestions for those who have been the victims of domestic violence and who still maintain contact with the perpetrator because of child custody issues.
1) Trust your instincts and don't let your guard down. If you fear that you may be the victim of domestic violence, don't be shy in seeking all the available remedies with the court.
2) Consider asking the court to order monitored visitation and that somebody else stand in for you to make the exchanges.
3) If possible, bring someone capable of defending you to the exchanges.
4) Ask the court for permission to video record the transfers so that you can report back to the court when the perpetrator crosses the line.
5) Consider bringing pepper spray, a taser gun, or any other weapon that you can lawfully carry to the exchanges.
6) Finally, consider investing in a security system for your house, including surveillance cameras.
As the above case demonstrates, the legal system does not have all the answers and cannot protect victims of domestic violence, in all cases. In light of this reality, you must take whatever steps you can within the law to protect yourself.
Article Source :
Donald P. Schweitzer has sinced written about articles on various topics from Legal Matters, Child Custody and Legal Matters. Donald P. Schweitzer, Law Offices of Donald P. Schweitzer, 201 South Lake Avenue, Suite 700, Pasadena, California 91101, (626) 683-8113