The prospect of filing for divorce can be disconcerting. There are concerns about your future–emotional and financial, and, concerns about your children’s future. If you are a business owner, there are the added concerns about how a business will be divided during the divorce proceeding. If you are unemployed and the primary caretaker of the children, there’s the concern about having to go back to work. Either way, the uncertainty of your financial future can be unsettling.
But what if your financial worries stem from something more sinister, such as a spouse or partner who prevented you from seeking employment and prevented you from using community income to buy basic necessities? This is economic oppression and is a form of domestic violence. For those who are experiencing this forced financial dependence, filing for divorce can feel like an impossible and terrifying task.
The presence of domestic violence no doubt heightens tensions and can present unique challenges in the divorce, including issues related to child custody. It is important to understand what type of conduct can be restrained by a Domestic Violence Restraining Order (DVRO) and how the court might view the presence of domestic violence between the parties when making custody orders.
How Can You Protect Yourself?
A DVRO can provide essential and expedient relief to those seeking protection, regardless of gender or age. Unlike other forms of restraining orders, a qualifying/close relationship is needed in order to seek relief under the Domestic Violence Prevention Act (DVPA). Such relationships include a spouse, an ex-spouse, a boyfriend/girlfriend, an ex-boyfriend/ex-girlfriend, a person the victim has been dating, an immediate family member, or a person with whom the victim has children. A DVRO not only can protect one’s physical being, but may also sweep more broadly by protecting personal property and family members, as well as protections regarding property and finances.
Physical abuse is not required in order to obtain a DVRO, though of course, its presence can warrant protection. Apart from physical violence, a DVRO can also protect against behavior that is harassing, stalking, or otherwise disturbing one’s peace.
You may be experiencing several of the above-mentioned forms of abuse but may be concerned because you did not call the police. Do not worry – a police report is not required in order to obtain a DVRO. However, in the event a police report is taken, and other relief was granted, such as a Criminal Protective Order (CPO) or an Emergency Protective Order (EPO), you are not prevented from simultaneously seeking a DVRO.
Possible relief includes, but is not limited to, stay away orders, move out orders, custody/visitation orders, spousal support orders, and child support orders. The restrained party may be ordered to stay away from your or the children’s school, home, or work. A DVRO may also give you exclusive use over jointly owned property such as your residence and vehicle, or by ordering the restrained party to “move out” of your shared residence. The DVRO can also prevent the other party from cancelling life insurance policies and/or order that the other party maintain and pay for your cell phone plan. Indeed, if you are experiencing financial abuse, the ability to remain in the family residence can be vital.
The Effect on Child Custody.
If you are a victim of domestic violence and are a parent, you are not just concerned with your future, but also the future of your children. It is important to understand how domestic violence affects a custody determination. Family Code section 3044 states in relevant part that “upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child…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 interests of the child.” Thus, seeking a DVRO can provide both immediate and long-term safety for a child, as well as present resolutions to protect the child from future abuse from the other party.
It’s Not Just Physical.
Domestic violence isn’t just physical violence. It also encompasses emotional, verbal, or financial abuse. If you are experiencing these issues, or believe you are a victim of domestic violence, you may be entitled to protection. Speaking to an experienced family law attorney about the possibility of filing for a DVRO may be the first step in providing expedient relief for you and your children, including but not limited to temporary solutions to living and custodial arrangements.