Call us today! 858-278-8080

Domestic Violence and Restraining Orders – We BETTER All Get Along!


The law, in the form of statutes and appellate decisions interpreting those statutes, has widened the criteria for determining what is domestic violence.
What is “domestic violence” (DV), how is it different from just plain “violence” and how does it affect matters in a divorce or post-divorce action?
The Penal Code determines the various criminal acts for which people may be prosecuted.  This includes, of course, criminal acts against one’s spouse or children.  But within the “family” context, we also deal with the Domestic Violence Prevention Act (DVPA).
Let’s first define some basic terms.  You’ve probably heard of “assault and battery”.  Ever wonder why it seems to always go together.  Is there a difference?  Yes, there is.  “Assault” is basically putting another person in fear of being harmed.  Battery is doing that harm; essentially, an offensive touching without consent.  Battery might be a poke in the chest with a finger, a blow with a pillow or, of course, a blow by fist or foot.  When the assailant pulls back her fist, she has committed assault.  When she lets fly and hits, that’s the battery.
Does the DVPA require some sort of physical harm?  Threat of physical harm?  No, to both.  The sanctions under the DVPA may apply for simply “disturbing the peace” of the other party.  This may take the form of emotional battery, such as demanding a party “pay attention” to an obsessive degree, following (stalking) and even, in one published case, reading and disseminating the other party’s private email (see  In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483).
The effect of a finding of violation of the DVPA in a family law matter?  It can be quite significant.  It can affect issues of custody and visitation, it can increase or decrease the amount of spousal support and the duration of spousal support (alimony), it can affect division of retirement plans.  In other words, a party can find themselves paying more spousal support for a longer period of time while not seeing their kids as much as they’d wish (thereby paying more in child support and making it easier for the custodial parent to relocate with the children) and having a reduced interest in the other party’s pension.  And that’s before we even consider the restraining orders that impact constitutional rights such as freedom of association, free speech, freedom to travel and the right to own a firearm.
Even if none of the family law issues apply, a person should not, ever, harass, threaten, assault, batter, stalk or in any way act in such a manner that an objective observer would agree that a person’s right to peace has been disturbed.  If you feel you have been wronged, you are not entitled to self-remedy the situation.  That’s why we have courts.
If the situation seems to be escalating, voices are being raised,  tables are being pounded, leave.  In fact, run.  The parties are not going to be engaging in a mutually beneficial manner so nothing will be accomplished except that one of them may be arrested and eventually found to be in violation of the DVPA.  For consequences, see the information, above.  As hard as it might seem to be, at all times be a calm adult.  Don’t allow yourself to be in a situation where you might be construed as being an aggressor, don’t create such a situation.
If you feel you are being harassed, if you feel you are, even to a slight degree, being threatened or are in any danger, leave if you can and then call 911.  If you can’t leave, stay calm and call 911.  Preventing a party from using the phone to call for help can be considered a felony.  No party should ever have to “put up” with any violence whatsoever, nor any threat.  Not even a finger poke in the chest; it’s just a precursor of worse to come.  You are entitled to peace and to peace of mind.
If both of you are adults, in the sense of being responsible persons, there should be no such problem involving DV.  If not, the one who can demonstrate that they are the adult, that they are the responsible person, will find that the court will protect them in all respects possible under the law and protect their children, as well.
Divorce and post-divorce actions are tumultuous enough, aggravating enough, without introducing elements of domestic violence.  Stay calm, both of you.  You’ll be very glad you “got along”, now and in the future.


Comments are closed.