Understanding Domestic Violence Under California Law

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange CountyDisagreements are not something unusual in one’s life. After all, it is not possible to agree with someone every time. And yet, when someone constantly feels unsafe or has to continuously live in a state of fear, domestic violence could be a major contributor. Any emotional, mental or physical behavior or act, which can have a negative impact on people living in the house or family members to an extent where they feel afraid, furious or nervous can be regard as an act of domestic violence.

Codes in California defining domestic violence

However, the definition of domestic violence may not be same in all states. Yet, the state of California is somewhat progressive with respect to the treatment of domestic violence incidents. It is also more sensitive with respect to how the court and the police system are directed to handle such cases and the kind of treatments victims of such incidents should get. The law of California has defined an act of domestic violence as an abusive treatment against a minor or an adult who could be a cohabitant, ex-cohabitant, former spouse or spouse. a kid from the individual or a person with whom a victim dated or has been dating according to Penal Code 13700.

California has also defined domestic violence as per the Family Code 6211. Its definition is wider as compared to the penal code. The code makes distinctions between non-criminal and criminal situations of domestic violence.

The domestic violence laws in California attempts to put an end to violence in intimate or familial relationships. It identifies acts of domestic violence if a person commits any type of criminal act within the purview of any relationship defined by the state’s Penal Code as mentioned above. Domestic violence cases are often synonymous with child abuse or abuse of spouses.

If a prosecutor brings a charge of domestic violence against the defendant, multiple sections of the California Penal Code can apply. It is the discretion of a prosecutor to select the kind of criminal charges to follow on the basis of how severe the conduct is and the degree of harm caused to the victim.

Restraining Orders

State laws of California enable domestic violence victims to file for restraining orders and emergency protective orders in criminal as well as civil courts. Issuing a restraining or a protective order does not essentially signify on how much harm is caused to the victim physically. An individual who has gone through acts of emotional abuse or is apprehensive of imminent harm is also eligible for being protected under the legal system of California. For more clarification on California domestic violence, you should contact an Orange County divorce attorney.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Top 5 Reasons for Couples Getting Divorced

Posted by: Gerald A. Maggio, Esq.

Divorce mediators Orange County; California Divorce MediatorsMarriage is not an easy relationship. There are several cases when couples started their married life with the best intentions but ended up getting divorced. There could be various reasons for which couples get divorced. Here are some of the most common reasons for couples ending up being in divorce court.

Extra-marital affairs or adultery

According to a report published by AARP, even today, adultery plays a big role in people filing for divorce. But, reports also claim that there are several reasons that lead to a spouse getting into an extra-marital affair such as unequal sexual urges, getting distant, having different interests, resentment and fury.

Gain in weight or obesity

Though it may appear as a surprising reason, unusual weight gain by one of the spouses is also known to be a major reason why couples get divorced. A survey conducted by Men’s Health magazine reported that when one of the spouses gains a lot of weight, it can come in the way of their marital bliss. If your spouse does not attract or get turned on to your body, there could be problems like resentment and rejection, which can be marriage-threatening issues.

Monetary issues

According to a report published by the American Journal of Sociology, when a husband is unemployed, it can be a major criterion for divorce. In other words, lack of or insufficient money can cause big problems in a marriage, often leading to a divorce. If a married couple faces financial on strainers, there could be a lot of stress. This can further lead to a lack of proper communication and constant arguing. There are many couples who have different views on the others’ spending habits. Relationships may undergo lots of stress where one controls or has the finances, which often end up in a divorce.

Lack of proper communication

Often you will hear people saying that proper communication is the key to a successful marriage. Many relationship coaches opine that negative communication or lack of communication may diminish feelings of romance and love between couples. When a couple stops having effective communication, marital troubles leading to a divorce are not unusual.


Abuse can be either a spouse being physically or emotionally abused by the other spouse. These are a common reason why many couples get divorced. Verbal or physical fighting that happens frequently between couples may make their relationship volatile and eventually end up in a divorce.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Understanding Family Law Emergency Restraining Orders

Posted by: Gerald A. Maggio, Esq.

Restraining orders Orange County; California Divorce MediatorsNot all family law cases can be mediated and resolved amicably, particularly where domestic violence or child abuse is involved where emergency restraining orders may be necessary to obtain.  Emergency restraining orders are granted only on certain instances such as a threat or an incidence of domestic violence or child abuse, child support and custody disputes, alimony requests and so on. The California Family Court, though, does not term everything under Family Law as an ‘emergency’.

Domestic Violence

If you have been a victim of domestic violence, you should ask your lawyer to file a domestic violence restraining order petition on your behalf and request for a restraining order against your spouse immediately. You will be granted a temporary emergency order till the time of the hearing on the domestic violence case.

During the hearing, you and any other witness will have to testify. Your lawyer will provide the court with documentary evidences. The court will then give a verdict that will either revoke the temporary emergency restraining order or will make it a permanent one. Most attorneys ask for a restraining order of 3 years. If there have been multiple instances of domestic violence, the court can increase it to 5 years.

If you are contesting a restraining order for domestic violence, you need to respond within 24 hours or less of receiving the notification. You will be barred from contacting and communicating with your spouse and children. You may also have to pay a support amount. You need to provide the court with evidences and testimonies from witnesses that prove you have not carried out the alleged act of domestic violence. You should declare your innocence under oath before the hearing.

Child abuse

An emergency restraining order for child abuse will immediately withdraw all visitation rights of the accused parent. Allegations of child abuse include instances of physical, sexual and extreme emotional abuse. Cases of emotional abuse are difficult to prove. Any parent filing a restraining order for child abuse should enlist the help of the local police and the child protective services.

If you are contesting a restraining order for child abuse, you must respond immediately and with great caution. You must gather witnesses for testimony. You must ask the court to appoint a forensic psychological evaluator and ask the alleging parent to depose.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Can Divorce Mediators Handle Cases of Domestic Violence?

Posted by: Gerald A. Maggio, Esq.

Orange County domestic violence attorneys; California Divorce MediatorsDid you know that according to a study, nearly half of couples that live in America have encountered some form of domestic abuse? This means that there is a chance that any marriage that goes towards a divorce will have traces of domestic violence in it.

Typically, cases of out and out domestic abuse are brought before the law, with the courts treading with caution in their dealing of the case. However, with more and more people opting for divorce mediation instead of litigation, the question is whether mediation can handle cases of domestic violence? Especially, because in most cases, the evidence comes to light only once the process has begun.

What Should They Do?

A domestic violence abuse is a serious offence. The issue needs to be handled with care. If such an accusation comes to light in front of a divorce mediator, they will have to follow the standard protocol of couple screening to judge whether they are capable of mediation. The aim of the procedure is to take a look at the balance of power that exists between the two spouses. Which spouse dominates the other and if there is any such threat of the physical or emotional abuse happening again.

The most important thing to realize about mediation is that one of the foremost priorities of a divorce mediator is to ensure the safety of the parties involved in the proceedings.

Can Domestic Violence work as the basis of a Divorce Case?

There is no right answer to this question and the answer will largely depend on the extent of the abuse, the nature of the abuse and the continuity of the abuse. One of the reasons why a spouse decides to end their relation has got to do with them not feeling happy in their marriage. Sometimes, this may be because of physical abuse, other times, it might be due to emotional abuse.

The mere presence of domestic violence in a divorce case though, doesn’t make it impossible to mediate. If, for example, the domestic violence took place a long time ago, or if it took place in a one-time instance, it might not have the same effect as a recurring one would perhaps have.

Steps Taken in Such Cases

If the couple does decide to go ahead with divorce mediation, there are a number of steps that the mediator might take to ensure a safe and smooth process. Here is a low down on some of the steps that might be taken:

  • Arrange for exclusive communications
  • Have separate mediation sessions

Whether it is litigation or mediation, no method condones domestic violence. Unlike the court’s iron stamp, mediation is more cooperative in nature. Yet, to deal with cases of domestic violence, the approach and tactics are typically changed.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.

How To Determine If Your Case Is Appropriate For Mediation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California divorce mediatorsThe rate of divorces has continued to go up in the last few decades with couples increasingly looking to end their relations due to issues such as lack of compatibility, understanding, and infidelity. The rate of increase in Orange County divorces has meant that people have now started to look for alternative ways to make sure they are able to end their relationship without having to go to court for settlement. One of the best alternatives in this regard is the use of Orange County divorce mediation.

Divorce mediation is a method of obtaining divorce that is considerably different from the usual method of mediation, since the core of this method is consultation, consensus, and compromise. The use of the three C’s has made divorce mediation one of the most peaceful and easy going way of settling marital disputes and allowing for divorce settlements to be drawn up without rubbing either of the party the wrong way.

Having said that —while divorce mediation is one of the preferable ways for the general public to end their marital relations—, there are a few types of divorce cases that are best left away from mediation. Here is a list of a few of situations where divorce mediation is unlikely to be the best option.

·        Cases Where Physical/Emotional/Child Abuse Is Involved

The concept of mediation cases is to create an environment of harmony between the soon-to-be-ex spouses, so that they are able to sit down and talk their differences out amicably without having to drag the courts into the personal matters of a couple. In domestic abuse cases however, more often than not, it is better for a couple to not use divorce mediation and instead rely on court proceedings. The primary reason for this is that cases that involve any kind of abuse are likely to involve protection orders for the abused spouse or child and full investigation into the claims, these tasks are best left to the courts.

·        If one of the Spouses is bent on delaying the proceedings and not ready to cooperate

More often than not there are tons of cases where one of the spouses is ready for the divorce process while the other is hell bent on trying to stop the other spouse from doing so for a variety of reasons. In cases such as these, it is best for the couples to try and use the courts instead of divorce mediation services. The reason for this is that mediation services are run on the basis of cooperation and commitment, if either of the spouses is disinterested and lacks the necessary will to find a solution; it is likely to be extremely hard for the mediator to try and continue and keep the mediation going in the right direction. The courts however can make sure with the use of their orders that both of these parties are honest and interested in the matters at hand.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”

How Does Domestic Violence Affect My Child Custody Case?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy:  Gerald Maggio, Esq.

It is important to know that the occurrence of domestic violence has a direct effect on any child custody case.  In California, the Court will consider your case to be a “domestic violence case” if the Court finds that a parent committed or was convicted of domestic violence against the other parent (or their child) in the last 5 years.

Pursuant to Family Code Section 3044, if the Court makes such a finding, there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children.  Such legal presumption can be overcome over time, if the perpetrator has completed a 52-week batterer’s treatment program, not committed any other domestic violence, and has complied with any other orders of the Court.  However, by that time, there will generally be a “status quo” of a regular custodial schedule, and part of what the court has to consider in determining what is in the best interests of the child is stability and a regular routine.

Furthermore, if there is a pending or final criminal case for domestic violence against the other parent, there is likely criminal protective orders in place in that case and possibly a family law restraining order also in the custody case that will affect custody and likely shape the ultimate outcome of the custody case.

So, if you are a victim of domestic violence, need a restraining order to protect you, and are seeking a divorce or child custody, you need legal assistance.  Likewise, if you are falsely accused of domestic violence by the other parent in an effort to alienate you from your children and affect your custody case by putting you on the defensive, you definitely need legal assistance to aggressively refute those false accusations.

Here is the entirety of California Family Code Section 3044:

  1. Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
  2. In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
  1. Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the non custodial parent, as set forth in paragraph (1) of subdivision (a0 of Section 3040, may not be used to rebut the presumption, in whole or in part.
  2. Whether the perpetrator has successfully completed a batter’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
  3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
  4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
  5. Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
  6. Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
  7. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
  1. For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child or the child’s siblings. 
  1. For purposes of this section, the requirement of a finding by the court shall be been convicted within the previous five years, after a trial  or plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273. 5, 422, or 646.9 of, the Penal Code.
  2. The requirement of a finding by the court shall also be satisfied of any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous 5 years.
  1. When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions, reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant admissible evidence submitted by the parties.
  2. In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.

For more information, please contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”