Family Code 3044 and Domestic Violence, Problems that Arise

NOT understanding CA Family Code 3044, or your judge ignores FC 3044--- is going to be problematic. Example:

When Custody is Actually Granted to an Abuser:

In re the Marriage of Fajota (2014) 230 Cal.App.4th 1487.  The Court of Appeal ruled that the trial court made two mistakes (twice “abused its discretion”) by awarding joint legal custody without applying Family Code section 3044, which says courts should almost never award joint legal custody to a parent who has committed domestic abuse against the other parent in the past five years, because it would be detrimental to a child’s best interest. 

This presumption against awarding joint custody applies when there has been a finding of abuse, even if a request for restraining order has been denied.

 Until the abuser rebuts (overcomes) the presumption against awarding joint custody, the presumption must be applied every time a court considers custody, even if the custody order will only be temporary. (FVAP litigated this appeal, which the court published.) (con't after the photos down below)....
*https://www.courts.ca.gov/documents/3044sheetEN.pdf

Thus, actually having a Criminal Protective Order and allowing

 judge to ignore it, is a huge problem and should never be allowed to go unchecked.  

IN difficult cases, we have seen judges widely ignore this rule.

If you are not getting enough help, as a victim, you may want to look at

the California Victim Compensation Board:

https://victims.ca.gov/victims/eligibility.aspx....  

  WHY?

Because a law was specifically passed-- such that if one party 

does HAVE a criminal protective order against him/or her--

that FACT must be written in the custody order by the judge--

so in most cases, on an RFO to change custody,

 there will be an order and FOAH (findings/order after hearing) that is issued.

                      
Most judges won't give a parent with the CPO,  custody---but we have definitely seen it done, and improperly at that; and thus, we have put it on the record both by filing the FOAH, forcing the court clerk to put it in the minutes, and making the record with a court reporter...at least this way, if one needed to file an appeal, the record would show there WAS a CPO and that judge gave custody to the parent who likely shouldn't have obtained custody. [I say shouldn't have obtained custody because in most cases no parent with a current CPO would obtain custody--UNLESS--someone was able to show it was in the child or children's best interests. Hard to imagine it, although slightly possible.]

Beware: it is definitely possible that judge(s)  "could"  give custody to a parent who is under  a CPO...although this would seem improbable, it does happen, and has happened, because we have seen the cases. Or other examples include CPS, which will place kids with people who are known drug people, past drug convictions, even on probation for drugs...  those cases usually require hiring a CPS Plaintiff attorney to sue.

Especially if it is not mentioned [that there IS a CPO] either during the Request for Order to change or modify  visitation and custody, or prior to mediation, because the mediator failed to look at the file or didn't have time,  and the person with the Criminal Protective Order against him or her-- gets custody?  REMEMBER: IF THERE IS A PROTECTIVE ORDER IN PLACE THE FAMILY LAW COURT SHOULD KNOW AND BE FORCED TO LODGE THAT FACT IN THE FINDINGS AND ORDERS IN THE FILE. THIS IS BECAUSE IT CAN HAVE AN EFFECT WITHIN A FIVE YEAR TIME PERIOD!

Criminal Protective Orders are not just handed out. Not usually.

 Some domestic violence orders are issued temporarily out of safety concerns, but essentially judges were finding they were sometimes asked to find for a DV TRO when the case may not have risen to the level required, or, there were too many implausible allegations, no facts, or few witnesses, and they started denying them more often.

A genuine Domestic Violence TRO should be based on factual data that can support harm to children or the parent filing it; it should be truthful and thus factually based, it should be clear and not ambiguous, it should have data but not 995 text messages attached; it should preferably be based upon evidence that one can prove and testify to directly, and not hearsay;  it should not contain false allegations; if in fact it has to use sexual data to prove wrongful conduct, such data should be mentioned without attaching, but should be described only to point to prove that such data/or conduct involved was actually revealed inappropriately or illegally; (there is case law on this, which is why I am stating this..) and if stalking or surveillance which is illegal is involved, it should have been reported somewhere, somehow, with some evidence that it was in fact documented; harassment or stalking by continued unwanted action, or having your mail stolen, or your car followed, or a GPS device was hidden under your car--these are basically improper actions and you need to save the evidence, and have witnesses, and hopefully photos that can be verified.

     Calling 911 if in FACT you can prove that such conduct which gave rise to the call is bona fide.  Calling 911 without such evidence will not help you very much, but if in fact there is an emergency, the 911 call is automatically recorded regardless.

     For example, our client called 911 from her phone while trying to escape the ex trying to chase her down in her car, AND client called attorney.  Attorney immediately called 911 and dispatch stated she was on phone with client.  We found out later via the police, that over 100 calls to 911 were made to the police as many people driving witnessed the criminal trying to ram the client's car?

This resulted in client going directly to police and guess what? 

  The culprit was in jail on $87-$93,000 bail AND he was allowed to get out of jail in a few days and no bail hearing? And yes, he already had a valid CPO against him?
Furthermore, he later was even given physical custody of the kids!?

The fact is, the culprit has been an informant in the past (whether acknowledged or NOT)--  and the DA let him get out OF JAIL ON PURPOSE.   This occurs when certain criminals apparently either become snitches or help certain sides to carry out activities.

Family Code 3044 is based upon a presumption that a perpetrator of Domestic violence is not likely to be the custodial parent for obvious reasons.  We suggest you look up the code, read it, and then figure out if you,  in fact, are in this boat; if so, get help ASAP.  There is no substitute for legal help in this area, as you will be losing your case  if you do it improperly.

We say this because we have seen judges in the past, award custody to the informant, criminal, or drug user.   They may claim such parent is not an informant, but let's be realistic here--when a person sells drugs, and then snitches people off, that is an informant, whether recognized or NOT.  Therefore such informant is dangerous --period.  Doesn't matter if he/she was working with government or not.  The informant is dangerous, therefore it puts the kids at risk.  It is that simple. Drug users, alcoholism, mental instability that involves anger control and aggression coupled with former DV cases are usually both difficult and expensive to fix. It can take more than a year to change legal and physical custody. If you keep waiting, it will just likely get more expensive to fix.

BRAIN TRAIN!! Depression in Divorce Doesn't Work!

BRAIN TRAIN!!

For all of those people out there that are already depressed, agitated, overly anxious, or anything close, please realize that since none of those states of mind will help you get through a bad time, it's best to instead channel the negativity into something that can manifest a clearer thinking train of thought.

While this will not be overly fast or easy, it will be worth it. One of the first things you can do is to not think  of what you don't want--- think only about what you DO want. 

After you have managed to stop yourself from being overly negative, you can test yourself every day.. this can be done by catching yourself with negative or anxious thoughts and saying "cancel, cancel" and then immediately saying a positive version instead. Attorney has long known that the brain can be trained but it takes effort. If you believe you deserve something better, then believe it wholeheartedly, and go after it.  It serves no purpose to continue to think in the negative because that will only bolster a negative result.

Amazingly, one must really want the desired outcome to manifest it. Winning a lotto, while on the surface would seem wholeheartedly positive, actually has many negatives within it over time.
Many lotto winners end up on a pile of rubbish and have no friends. So don't believe that just because something on the surface seems great and wonderful, that it will always be that way.

Nothing stays the same, and training your brain to learn acceptance will, with time, change your life. You don't have to believe me, it's all true and widely known over the centuries through time.

And on that note, if you have no clue as to how to learn "acceptance" [which basically means learning not to judge everything], I recommend the book by John Ruskan, Emotional Clearing, particularly the section on acceptance.  I have had clients tell me that the book changed their lives, and I believe it.

Family law, divorce, and court can make people feel awful! But even so, learning not to label everything and acquiring the ability to learn acceptance at a certain level can actually change your life. I have given the books out to clients and many of them have even told me the book changed their way of thinking, and one client even said it saved his life. So if it could change your LIFE-- it might be worth it to get the book!!!!

Can Domestic Violence Lead to being Arrested? Yes!

Apparently, people believe that they can get away with violence against others, which may include children, even their own children---or their spouse, or significant other (partner..)  In the more serious cases, it is best to obtain a criminal protective order and if one is obtained, this should always be judicially noted within any further custody hearings, especially on the FOAH documents. 

     While it is possible that even one who has broken the law can still obtain custody of children, the prove up for that happening should be rigorously followed, and would in most cases, be fairly difficult.

Regardless of one's profession, even doctors, attorneys, or other public officials of any type are subject to the same laws in California re domestic violence. Almost no one is spared from the law, or at least they shouldn't be. The cross over elements between DV TRO cases and criminal prosecution, and protective orders can be fairly complex. And continuing changes in laws involving DV TRO cases are nearly always ongoing. 

While DV TRO cases are not issued quite the way they used to be, the prove up for such cases tends to be different in each case and often depends on the particular judge. We have seen judges deny DV TRO cases that seemed fairly valid, but yet allow certain cases that seemed highly improbable.   If there is any doubt as to whether such a case should be filed, it is best to consult with a family law attorney that has routinely worked with DV TRO cases. And again, if you are in a county where there is corruption, you may find that certain cases against defendants will not "stick" no matter how obvious the harm, where, for example, the defendant is a criminal informant.   Amazingly, it appears that  many family law attorneys do not realize this.

                         We can truthfully say that yet another defendant                            accused  of domestic violence [against children] 

was placed in jail north of

  Tehama County, for arraignment, and yes, this person is an attorney. 

There is already a temporary DV TRO in place against the defendant......

For example, years ago, when an attorney well known in Oroville was cited for drunk driving, we are sure most people saw it in the newspaper. It is not that uncommon. 

Although we know the arrested person will bail out, what we are getting at here are the facts: NO ONE is immune from facing charges when violence is used against children--nor should they be. 

A count  or several counts with  felony corporal punishment and misdemeanor child endangerment.... This is public knowledge as  nearly all charges on such arraignment calendars are open to the public for the most part.

Beware, if you are a parent, adult, or just a person who chooses to use physical punishment which is over the top, excessive, and uncalled for, you are risking facing charges if people speak up. Once this is done, it usually cannot be undone. 

https://reader.elsevier.com/reader/sd/pii/S0145213417300145?token=2B1D7E535DFEA7BD10AA1AE278CC075F7218107C7B2B8D50F95024A5CF3566EF2246F46734CB25D16D2FA32AD46D9974

This study (above)  compared the extent to which a childhood history of spanking and a childhood history of physical and emotional abuse are linked with mental health impairments in adulthood.

         The first main finding is that spanking loaded on the same factor as the physical and emotional abuse items indicated these experiences are highly correlated and reflect a similar underlying process.

         Second, a childhood history of spanking was associated with increased likelihood suicide attempts, mod- T.O. Afifi et al. / Child Abuse & Neglect 71 (2017) 24–31 29 moderate to heavy drinking, and street drug use in adulthood, over and above their childhood experiences of Physical/Emotional abuse indicating that our understanding of adult mental health impairments is better when we consider the experience of spanking along with Physical/Emotional abuse....

Do You Want to Win Your Case? Should You Hire a Litigator? Do You Care?

What Type of Attorney do You Really Need? Do You Want to Win? You Don't Care?

*People must care because about 2,609 people have read this post*

Do you have a case where you want to win, or need to win your case?
Do you have the winning facts?  Do you know what law would or would not support your position? Do you want or need an actual litigator for your case?

Hiring an advocate (attorney litigator) is not the same as hiring collaborative attorneys. Also, mediating* a case with only one attorney means ...The mediator helps people talk the issues through, supposedly helping to "settle" the dispute themselves. In this attorney's opinion, it would not be recommended in most cases, because typically the overbearing spouse simply bulldozes the other spouse.

*[Mediation for visitation is not the same thing as mediation of an entire divorce case. Mediation for visitation/custody is required by law in CA when there is no agreement.]


There are many pitfalls that can arise in divorce; many of them involve financial transactions that one spouse had no knowledge of; assets that one spouse did not know about; children that were conceived outside the marriage and spouse never knew other spouse was paying; secret business dealings that was predicated on all cash; illegal actions by one spouse implicating the other spouse who had no knowledge; large debts racked up by one spouse, without the other spouse even knowing such debt existed; one spouse signing the other spouse's name for a credit card, then ruining the other spouse's credit.... NONE of these things, in this attorney's opinion, should be addressed in either mediation or collaborative law scenario.

That is because there was a huge breach of fiduciary duty that has serious consequences to the guilty spouse. That should be done in court since the guilty spouse should have to pay for wrongdoing. (Of course if you are too afraid because your spouse might try and kill you then you better go get help right away.)
                                           


Especially if you have issues in the 3 lines below, which happened BEFORE the case finalized---- you should never hire anyone except an advocate litigator. Aggressive at that. Plus, there are huge time barriers to trying to set aside any of this!

Fraud, Duress
Mistake, Coercion,
Failure to Exchange Declarations (Assets Debts)-or-
  when exchanged, i.e.--have false, misleading or improper numbers, values, dates..

We live in a society where people often want what they want, and when clients hire attorneys to get something done, especially in family law, it's often because one SIDE tried to take advantage of the other side.  If you have a family law case where both of you AGREE on everything then of course you don't really need an attorney, except perhaps to create a settlement agreement.

HOWEVER, the vast majority of most divorces and break ups, are because the couple cannot agree on a lot of things, including (just an example....) post judgment orders.........

How to raise the kids-- too lenient?  too strict?
How to spend income from employment or inheritance
What to do with spouse that is either dangerous, aggressive, drinks too much
How to get out of supervised visits?? You have an ex spouse also?
Your spouse is bipolar and can't be controlled?


Of all the problems attorney has seen over several decades, the problems around children tend to generate the worst issues, followed by physical harm, financial issues, and alcohol or drug use.

And remarkably, attorney has seen clients REFUSE to take what he/she is entitled to, and then SETTLE a case by using an attorney who is or was a mediator, --- in other words, the attorney is not acting as a litigator for the client?

If you are entitled to something, why would you pay someone to settle a case when you could have settled it without help????   Collaborative law and mediation means if you don't settle the case using whomever you hired, those attorneys cannot represent you in court anyway.

You THEN have to hire new attorneys!!

While mediation and collaborative may be good for some cases (which means you are settling case by paying people to settle it without court)-- it is essentially negotiation. Judges are not involved. If you work something out and then don't like it later--- what you have -- is a problem.

              Some of the down sides of  collaborative law (which includes hiring people like accountants and other experts) and which makes it costly:

The Expense; Impact of termination and cost of new counsel; No advocacy for one or both parties; directed conversation between parties, power imbalances, difficult issues might remain secret (such as domestic violence, addictions, drugs, gambling, infidelities,etc.); Possible inadequate information collection, potentially less support for views of children.

Basically, in mediation there is no advocate for YOU.
In collaborative law, BOTH sides work on issues, but NO ONE is an advocate for YOUR side.
The collaborative view is to work out issues, not really take sides as an advocate----a true advocate is there to represent YOU, not the spouse.

This is part of the reason that most people in a divorce WANT an advocate, and need a litigator --- because they are being taken advantage of, steamrolled, or being misled or manipulated.

You don't have to believe attorney, look at one of my other sites for example, where it is stated in plain English, by the mediator--  that making the decisions with a mediator is not the fault of the mediator, and the mediator is quoted... (and quite frankly,the mediator does state the truth)

                        "The role of the mediator is to assist the participants reach an agreement. 

 It is not the mediator's role to give legal advice or to assure

 that the agreement is fair or equitable to either party.  

There may well be unintended consequences resulting in one or more

 of the participants suffering "buyers remorse", but they made the decision

  to accept the terms  and entered into the agreement, not the mediator..."

 Note--again, the "mediation" we are speaking of, is NOT the family law mediation process that the COURTS do, for contested custody.

       Private mediation means both parties choose to use one mediator to arrive at some agreement, and because a mediator does not dispense legal advice the way a legal advocate would do--as in actual litigation--where each party is represented by their own separate attorney-- the "mediator" himself or herself--- is only assisting both parties to REACH an agreement.

Carefully NOTE-- the mediator does not need to assure either party that the agreement is fair or equitable to either party.   LOL-- that's fine if you don't care what you are getting, or you don't know your rights and you don't care about about that either??

       Unfortunately---if you do this and then realize you lost out on something because you did NOT know your rights at all---then guess what??? You are in trouble, most likely.

*** I  can almost guarantee that this blog has more information in Northern CA than majority of  family law sites.  Attorney typically will write, argue, and inform... and help people, the purpose of the writing is to hopefully enlighten--so that you can make better decisions. 

                      

NOTE: all of our content is original, if we have mentioned a subject from another site, research info or similar, we will include a link. We have no need to use other people's content and claim it is ours. In animal law we may occasionally quote, due to the specificity of the data,but there will usually be a link also. All people reading and browsing should use their own diligence to obtain correct information and for checking laws, we would use findlaw.com.                        

If You are a Victim of a Crime or Your Child is a Victim

No surprise that the Victim Compensation Board list of who

 is eligible for compensation,

lists DOMESTIC VIOLENCE  first-- on the list?

   **Note: Despite the program,  if your case involves an informant (snitch) who is owed favors
by the government or something close, be aware that you may find it difficult to get help down the line. 
We have seen this happen. 





https://victims.ca.gov/victims/eligibility.aspx
https://victims.ca.gov/victims/howtoapply.aspx
https://victims.ca.gov/docs/forms/victims/apps/victimcompensationapp_eng.pdf
https://victims.ca.gov/restitution/victim.aspx

The Victim Compensation Board (CalVCB) can help victims and family members of victims of crimes such as:  DOMESTIC VIOLENCE,
CHILD ABUSE, ASSAULT, SEXUAL ASSAULT, ELDER ABUSE, MOLESTATION, HOMICIDE,
ROBBERY, HATE CRIMES, DRUNK DRIVING, VEHICULAR MANSLAUGHTER, HUMAN TRAFFICKING, STALKING, ONLINE HARASSMENT....... 

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