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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 9912
Experience:  Experienced Family Law Attorney
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Need some advice. I have left the father of my kids 6 month

Customer Question

Need some advice.
I have left the father of my kids 6 month ago. I have three kids and I have filed for child support. He has been verbally abusing me in front of the kids when he picks them up. He brings up an affair I had a year ago in front of my 8 year old son. He graphically describes the sex in front of him. I want him away from me and my children. What do I do?
Submitted: 2 years ago.
Category: Family Law
Expert:  LegalGems replied 2 years ago.
Good Day! I'll do my best to assist you. Please remember: I only provide general information and a local attorney should always be consulted. A few minutes please as I get you the requested information.
Expert:  LegalGems replied 2 years ago.
Domestic violence is defined as:
Physically hurting or trying to hurt someone intentionally or recklessly;
Sexual assault;
Making someone reasonably afraid that he or she or someone else is about to be seriously hurt (like threats or promises to harm someone); OR
Behavior like harassing, stalking, threatening, or hitting someone, disturbing someone’s peace, or destroying someone’s personal property).
Relevant family code:
6203. (a) For purposes of this act, "abuse" means any of the
following:
(1) Intentionally or recklessly to cause or attempt to cause
bodily injury.
(2) Sexual assault.
(3) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another.
(4) To engage in any behavior that has been or could be enjoined
pursuant to Section 6320.
(b) Abuse is not limited to the actual infliction of physical
injury or assault.
As such, domestic violence can be verbal. One can apply for a restraining order against the offending party.
Domestic violence can affect child custody negatively:
3044. (a) 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.
(b) 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 noncustodial parent, as set forth in
paragraph (1) of subdivision (a) of Section 3040, may not be used to
rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer'
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.
(c) 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 and the
child's siblings.
(d) (1) For purposes of this section, the requirement of a finding
by the court shall be satisfied by, among other things, and not
limited to, evidence that a party seeking custody has been convicted
within the previous five years, after a trial or a 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 if 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 five
years.
(e) 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.
(f) 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.
In determining custody, the courts will look at the best interests of the child:
3011. In making a determination of the best interest of the child
in a proceeding described in Section 3021, the court shall, among any
other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking
custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or
with whom he or she has had a caretaking relationship, no matter how
temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or
person seeking custody, or a person with whom the parent or person
seeking custody has a dating or engagement relationship.
As a prerequisite to considering allegations of abuse, the court
may require substantial independent corroboration, including, but not
limited to, written reports by law enforcement agencies, child
protective services or other social welfare agencies, courts, medical
facilities, or other public agencies or private nonprofit
organizations providing services to victims of sexual assault or
domestic violence. As used in this subdivision, "abuse against a
child" means "child abuse" as defined in Section 11165.6 of the Penal
Code and abuse against any of the other persons described in
paragraph (2) or (3) means "abuse" as defined in Section 6203 of this
code.
(c) The nature and amount of contact with both parents, except as
provided in Section 3046.
(d) The habitual or continual illegal use of controlled
substances, the habitual or continual abuse of alcohol, or the
habitual or continual abuse of prescribed controlled substances by
either parent. Before considering these allegations, the court may
first require independent corroboration, including, but not limited
to, written reports from law enforcement agencies, courts, probation
departments, social welfare agencies, medical facilities,
rehabilitation facilities, or other public agencies or nonprofit
organizations providing drug and alcohol abuse services. As used in
this subdivision, "controlled substances" has the same meaning as
defined in the California Uniform Controlled Substances Act, Division
10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision
(b) or (d) have been brought to the attention of the court in the
current proceeding, and the court makes an order for sole or joint
custody to that parent, the court shall state its reasons in writing
or on the record. In these circumstances, the court shall ensure that
any order regarding custody or visitation is specific as to time,
day, place, and manner of transfer of the child as set forth in
subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the
parties stipulate in writing or on the record regarding custody or
visitation.
If one party alienates the other parent (parental alienation) the court will often take that into consideration because it is deemed harmful to the child and other parent.
Information of restraining orders: http://www.courts.ca.gov/documents/dv500info.pdf
form for requesting here: http://www.courts.ca.gov/documents/dv100.pdf
and http://www.courts.ca.gov/documents/dv109.pdf
and here: http://www.courts.ca.gov/documents/dv110.pdf
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Expert:  LegalGems replied 2 years ago.
Here is a link to help locate an attorney:
www.findlegalhelp.org and http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
Of course, should you have other questions please do not hesitate to post here.
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