In a divorce or custody case, acts of domestic violence in Fresno can be present that raise concerns for the parties and their children. These acts can include not only physical acts of violence, but threats of violence too. These types of acts can cause particular concern to the court when a family law case is brought before it.
Your state has laws against family violence, both on the criminal side and civil side. On the criminal side, statutes provide that a person who commits family violence against their spouse or significant other faces penalties if convicted, including jail time and fines. Depending on the severity of the family violence, these can either be misdemeanor or felony offenses. On the civil side, a person committing family violence can have protective orders issued against them that provide a victim with security and safety from the perpetrator of family violence.
If a spouse or parent of a child has been the victim of family violence, the first thing that needs to be done is to get out of the situation and environment where the family violence is occurring. This can often be the hardest part of the case because the victim has a relationship with this person and has likely been the victim of this type of behavior before. Also, the victim might be financially dependent on the perpetrator such that leaving the marital residence or the home they occupy together is not easy.
Once the separation has occurred, the victim will need legal representation to obtain immediate relief from the perpetrator through the filing of an ex parte protective order with the court. This is an application filed with the court for relief from the violence of the perpetrator that is done without the perpetrator being present. The goal is for the court to issue an immediate order of relief to the victim against the perpetrator that orders him or her to not commit family violence in the future, stay away from the victim and the children, vacate the parties’ residence, and be present at a contested hearing in the near future for the court to decide whether a permanent protective order will go into effect.
The next step in this process is to serve the ex parte protective order on the perpetrator and the local authorities in his or her jurisdiction to alert them of the issuance of the protective order. This not only gives notice to the perpetrator of the orders against him or her and the upcoming court date, but lets local police and sheriff’s offices know that there is an active protective order between the parties in case an incident should arise in the future.
Response to Protective Order
When a spouse or significant other is served with the initial protective order, this can cause a variety of reactions by them . The hopeful and intended result is that the perpetrator will cease their actions and stay away from the victim and the children. However, another reaction might be anger and hostility such that the perpetrator seeks to contact the victim to voice their disdain of the victim’s actions. Another possible reaction is remorse where the perpetrator seeks out the victim to discuss the case and how it can be dropped in the future. It is important for the victim to avoid the perpetrator and call authorities should they violate the protective order. In addition, it is important for the victim’s own safety to not engage the perpetrator as the next act of family violence could prove dangerous or deadly.
With that said, once the perpetrator is served with the protective order, the parties will prepare for and show up to the contested protective order hearing. The victim will want to collect all documentation of the family violence that has occurred between the parties in the past, including any photos, emails, texts, letters, and correspondence. Also, the victim will want to have any witnesses at the hearing who actually witnessed acts of family violence between the parties. The victim’s attorney will likely also subpoena police reports, 911 calls, and police officers to show up to the hearing to testify about any incidents of family violence.
The perpetrator will likely file defensive pleadings to the application for protective order of the victim and build a defense to it as best he or she can. Depending on how egregious the family violence is, the perpetrator’s attorney might consider an agreed protective order at the hearing to avoid the details of the incidents of family violence being made aware to the court. The perpetrator’s attorney might also try and show that while there was an incident of family violence, it was an isolated incident and family violence is not likely to occur in the future.
If the court orders the protective order against the perpetrator after presentation of the evidence, the orders will contain specific relief against the perpetrator that will last for a certain period of time. The types of relief ordered can be staying a certain distance away from the victim in the future, receiving supervised possession of the parties’ children, paying child support to the victim (or alimony to the victim if they were married), and not possessing a firearm in the future. Protective orders can last for a certain period of time in the future, usually a couple years.
A protective order will typically expire after a certain period of time at which time the orders contained in it will cease. This can be prevented by filing for an extension of the protective order, but circumstances will need to be shown to the court to justify this, such as violations by the perpetrator since the protective order was issued.
It is important to note that the consistency between the criminal and civil side of the family violence allegations needs to be maintained such that they will withstand a challenge in court by the perpetrator’s attorney. With an effective strategy being developed by the victim and their attorney at the outset of the case, obtaining relief from family violence can be a useful tool to deal with an abusive spouse or significant other.