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Restraining Order Abuse
Are you the next O.J. Simpson? Are you a threat to your wife and kids? Most men aren't, but it might surprise you that the Family Courts in California presume that you are. In fact, just about every aspect of the Family Law system has an inherent predisposition to treat you as a threat to your family.
How is this possible? It happens most often in a divorce proceeding where there are children. The Family Code specifically provides that the Court must presume that both parents should have equal custody of the kids. But this even-handed presumption can be very quickly turned on its head. You see, this presumption can be easily trumped by a finding that you have committed or even may commit domestic violence. Once that finding has been made, then you will lose your children unless you can prove by a "preponderance of the evidence" that you are not a threat to your kids.
While the law has very good intentions, it is being misused regularly. The most egregious abuse is the false allegation of domestic violence — that is, one party flat-out lies about the conduct of the other. The more insidious abuse is the allegation of domestic violence as a tactic to get the upper hand in divorce proceedings — that is, the party doesn't outright lie but makes the allegation with the hope that the court will buy it. And the courts do buy it — all the time!
How can that be? Well, the standard to show that you are a threat is very low: "reasonable belief" by the Judge that you are or may be dangerous. And Judges most definitely have adopted a "better safe than sorry" approach whenever presented with an allegation of domestic violence. After all, you may be the next O.J.
But wait... it gets worse. You can be hauled into Family Court with no notice and no preparation to defend yourself against an ex parte allegation of domestic violence. Whether or not you dodge this bullet, you'll be back in court 21 days later to defend yourself again. But even if there is scant evidence of any threat, you are likely to lose since the burden of proof is so low and the risk, in the Court's eyes, is so high.
What does losing mean? Most likely you will be immediately removed from your home, restrained from seeing or speaking to your children, and lose all your possessions until a later (usually much later) trial. In the meantime you are now a perpetrator of domestic violence in the eyes of the law. Your name will be registered as such throughout the State and you will have a three-year restraining order against you. And you will have to bear the weight of a presumption against you throughout the remainder of your divorce and custody proceedings.
Everyone we've spoken to — from Family Law attorneys to local D.A.s — tells us that the pendulum has swung very far against men in the Family Law arena since the O.J. Simpson trial. In the wake of the Simpson case, AB 840 (2000) added section 3044 to the Family Code, which makes it very easy to use restraining orders as a tactical weapon in custody battles. Specifically, the change allows restraining orders — which are given out in assembly-line fashion with little or no evidence required — to be considered a finding of abuse, thereby making the restrained person ineligible for joint custody of the children.
AB 840 was opposed by a very credible group, including the Family Law Section of the State Bar; California Judges Association; California Judicial Council; Coalition for Parent Support; Leslie Ellen Shear, Attorney at Law; Commissioner Bobby Vincent; David Kuroda, LCSW, former Division Chief of the Mediation and Conciliation Service, Family Court Services of the Los Angeles Superior Court. They recognized that the change proposed by the bill would open Pandora's Box and leave the door open for abuse of the restraining order process in divorce and custody proceedings.
California AB 99 amended Family Code section 6361(b) to provide that Domestic Violence Protective Orders issued in Family Law proceedings can be extended for a maximum duration of 5 years (effective January 1, 2006). Thought AB 99 passed, it was again opposed by a significant group that included the California Public Defenders Association and the Family Law section of the California State Bar. Their primary concern continued to be that these protective orders are being used to gain a tactical advantage in custody proceedings, and to give a party the upper hand in property litigation and spousal support cases. (See Family Law News, Vol. 27, No. 4, 2005 at pages 26 - 30.)
It is clear that there are cases of real domestic violence and abuse that require protective orders. But as the protective order is used more and more for litigation purposes, rather than real protection, the value of the protective order is being eroded. Already law enforcement officials are inundated with restraining orders. As a result, they are finding it difficult to uphold protective orders because they are so prevalent. This means that real cases of abuse may not get their protective orders enforced when they really need them. The current trend to misuse domestic violence protective orders is a detriment to everyone — except the misuser.
So, the Domestic Violence/Restraining Order tactic is being used repeatedly by some attorneys and their clients to gain the upper hand in divorce and custody proceedings. Something needs to be done to ensure that the best interests of the family (and especially the children) can be fairly assessed without recourse to fabrication and legal abuse. CAFC will continue to monitor all legislation and cases pertaining to this issue. Our educational seminars also deal with this topic directly, and we hope to educate lawmakers, lawyers, mental health professionals, law enforcement, and everyone else involved in the process about the harm caused by this abuse of domestic violence protective orders.
Earlier this year the California Judicial Council & Domestic Violence Practice and Procedure Task Force held hearings in Los Angeles and San Francisco. The Task Force sought public comments on the courts' handling of domestic violence cases, including restraining orders. Moreover, the Task Force was seeking comments on proposed guidelines for the handling of domestic violence and restraining order cases (see ). CAFC participated in those hearings. We sought to bring the issue of false accusations to the attention of the Task Force and to bring awareness of the lack of services afforded to male victims and their children. As a follow up, on June 28, 2007, CAFC reitereated its concerns about false allegations and the abouse of the restraining order process in a letter to the Task Force. CAFC will continue to press this issue before the Task Force as it continues its deliberations.
In memory of Steve Tipaldi