Domestic Violence from a Legal Standpoint
- 09 01, 2016
- Domestic Violence
The issue of domestic violence is playing a high profile role in the recent divorce proceedings of Johnny Depp and Amber Heard. Though child custody is not at issue after their brief 15-month marriage, a temporary restraining order was granted after evidence of physical abuse was presented to a judge. Depp’s lawyers have issued statements disavowing any wrongdoing, but since the restraining order was granted, it’s clear that the judge considered Heard’s plea credible. In order to have the restraining order lifted, Depp would need to produce a preponderance of evidence to the contrary.
Divorce is, under normal circumstances, an emotionally overwhelming process which can be made easier by sound, trustworthy legal counsel. However, when the decision to end a marriage arises from the perpetration of domestic violence, and especially when there is threat of further abuse, it is especially important that the victim seek prompt counsel and legal protection from their abusive spouse.
A domestic violence restraining order (DVRO), once obtained, requires the offending spouse or family member to stay an established distance away from the victim for a court mandated period of time. In order to secure a DVRO, the victim must file a legal petition and provide credible evidence that abuse has been committed against him/her or his/her children. Because a legal case must be made, and evidence of abuse presented, it behooves the victim to report an incident of domestic violence early. In many cases, patterns of abuse progress over time. Victims — out of loyalty to their spouse or the hope that a violent episode is a one-time, out-of-character mistake — are reluctant to report their abuse. But silent victimhood is also a progressive pattern, one that can undercut an attorney’s ability to build the credible, timely evidence needed to petition for a DVRO. In addition, when the safety of children is threatened, it is doubly important to move to gain legal protection from a violent spouse, especially as subsequent divorce proceedings will concern the awarding of custody.
Evidence of domestic violence perpetrated by one spouse against the other — or against the child — stands as an important qualifying circumstance with legal ramifications that can alter the shape of custody rulings.
Family Code Section 3044 delineates the legal presumption that findings of domestic violence enacts:
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.
Family courts take custody decisions very seriously, seeking above all to determine and protect the best interest of the child. Sadly, the other side of the domestic violence issue is that it’s not uncommon in family court to see accusations of abuse levied by one spouse against the other in order to influence custody rulings. Judges, however, are accustomed to and practiced at discerning credible accusations of domestic violence from dishonest ploys for leverage, but in a legal milieu in which it is assumed that emotions will be pitched to their extremes, a record of due diligence in factual reporting on the part of the victim goes a long way toward establishing credibility and moving toward resolution. Establishing a reliable baseline of safety and personal security free from the threat of violence, should be an abuse victim’s first priority in the process of dissolving a marriage. Reporting abuse early and securing the guidance of a skilled divorce attorney are prerequisites to ensuring the full protections of the law.