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Thursday, June 25, 2020

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)....

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:

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.