Dealing with Domestic Violence in Fresno

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.

Moving Out

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.

The Hearing

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.

Initial Conference with a Fresno Family Law Attorney

The initial conference with a Fresno family law attorney can be a daunting task, as the events leading up to the initial conference are likely taxing on an individual.  A husband or wife might have had to go through finding out their spouse has been unfaithful or has wasted money from the marital estate.  These types of activities can cause a spouse high levels of stress before they even come to an attorney for a consultation.

First Telephone Call

Once a spouse has determined that legal intervention is necessary in their marriage, the all important first step is to call an experienced family law attorney for an initial consultation.  Once they call that attorney’s office, they will likely speak to a legal assistant or paralegal who will take their information, discuss the background of their case, and set up a time for them to meet with an attorney at the firm.

At this stage, it is important for a client to give the person helping them any details on themselves and their spouse, particularly to check for any conflicts with the attorney’s possible representation of the potential client.  In addition, any information on the parties can help the attorney determine if a case has already been filed involving the parties before the client comes in to meet with the attorney.

Once the client has talked with the legal assistant or paralegal at the firm, they will need to prepare and bring in any relevant documentation to the initial consultation with the attorney.  This will include any pleadings they have been served with, any income and expense information for the spouses, and any documents showing assets or liabilities of the parties.  These will help the attorney get a better idea of the size of the parties’ marital estate along with the respective financial capabilities of the spouses.

The Conference

At the actual initial conference, the attorney will usually begin by asking for background information on the parties’ marriage, including when they were married, if they have any children, the ages and needs of the children, the work history of the parties, and the financial condition of the parties.  The attorney is asking these questions to gain insight into issues that could come up in the divorce case such as custody, visitation, child support, alimony, and property division.

As an example, if the parties were married for 15 years, with the husband being the primary breadwinner, and the wife staying home with the children who are now 10 and 12 years of age, this will help the attorney representing the wife identify that his client would want to be named primary custodian of the children with the right to designate their primary residence and her husband paying child support to help with raising the children in the future.  Further, the attorney would want to know the income of the husband and expenses for the family to see how much in alimony would be payable by the husband to the wife after the divorce is final.

As another example, if a husband came to an attorney with a marriage that had lasted 6 years with both spouses working and sharing the responsibility for raising their 5 year old child, the possible goals of representation might be different than the previous example as the parties could have equal or shared custody of their child with a decreased amount of child support and no alimony since both spouses are working and able to provide for themselves.

Of course, every marriage is different, so the above examples might not meet the particular situation of your marriage, but it can help give an idea of what to expect when coming into meet with the attorney who will ultimately handle your divorce case.  Other issues that the attorney will likely look for will be special needs of the children, any incidents of domestic violence, fraud or wasting of marital assets, or drug or alcohol issues.

Special Issues

Special needs of the children can include a mental or physical disability that makes a child incapable of self-support past the age of 18.  The parent who has custody of this disabled child will then receive child support into the child’s adulthood, and the non-custodial parent will have to pay for other expenses for the child such as medical expenses.

Domestic violence can be of particular concern for your attorney because he or she will want you to not only have protection from your abusive spouse, but your children too.  This can mean he or she might consider obtaining a restraining order or protective order for you and your children’s protection.  These can order your abusive spouse to vacate the marital residence, stay a specific distance away from you, pay child support, have supervised possession of the children, and not possess a firearm.

Fraud or wasting of marital assets can also be an important issue as your attorney will want to act to prevent the further depletion of these assets by your spouse.  This can be done by a restraining order or it can be done by appointing a receiver to manage the property while the divorce is pending.  The receiver can take control of a marital business for example and make sure it is operated properly instead of your spouse causing harm to it by their irresponsible actions.

Drug or alcohol issues can also be of concern to your attorney, and he or she might ask the court for a drug test of your spouse to show the court the substances your spouse is under the influence of.  This can act to have the court order such things as counseling, AA or NA classes, and alcohol monitoring.  In addition, these types of issues can have the court order limited visitation with the children including supervised visitation.

As can be seen, there are many issues your attorney will want to delve into at your initial consultation.  By bringing up these issues at the forefront, your attorney can effectively act on your behalf and obtain the best results possible in your case.  In addition, going into all of these issues with your attorney in the beginning will make it so he or she is not surprised later on when something arises that was not discussed at the initial consultation.