California Family Law Blog

San Jose Divorce Lawyer discusses Chris Brown and Rihanna: When to File for a Restraining Order

By now we all know that Rihanna and her boyfriend Chris Brown were in a physical altercation last week. Perhaps the question on everyone’s mind (besides why did he do it), is should Rihanna be seeking a restraining order against him? Or did she get one from the police?

In California, there are two main types of restraining orders available to victims of domestic violence: domestic violence restraining orders, and criminal protective orders. Criminal protective orders are issued in cases where criminal charges are pressed. A domestic violence restraining order is issued by the family law courts, and requires no pending criminal charges. These domestic violence restraining orders are issued on an ex parte basis, and set for a hearing in a short period of time. At the hearing, courts can issue longer restraining orders, anywhere from 1 to 5 years.

Domestic violence protective orders are appropriate in cases where the parties are divorcing, were never married, have children together, or are related by blood or marriage to each other. The party applying for such an order must show a danger of some imminent harm. To get a long term order, Under California Family Code section 6300, restraining orders may be issued “to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” Abuse can mean stalking, physical abuse, harassment, making telephone calls, or otherwise threatening a person’s safety.

Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

Sacramento Family Lawyer Discusses Domestic Violence Against Men and Restraining Orders:

Very little is known about the actual number of men who are in domestic relationships in which they are abused or treated violently by women. In 100 domestic violence situations, approximately 40 cases involve violence by women against men. There are many reasons why we don’t know more about domestic abuse and violence against men. One main reason is that the incidence of domestic violence reported by men appears to be so low that it is hard to get reliable estimates.

Help for men who are victims of domestic violence is not as prevalent as it is for women, as there are virtually no shelters, programs or advocacy groups for men. The best route for a man who is suffering from domestic violence is to file a request with a local court for a restraining order

A restraining order is an order made by a court to protect a person from physical pain or injury or from the threat of pain or injury. If you swear to the court that you are in immediate physical danger, the court may give you an ex parte restraining order. An ex parte restraining order is a temporary, emergency order that is made when only the requesting party (called the applicant or petitioner) is present to talk to the judge. If the judge agrees you are in immediate physical danger, the ex parte order will be granted and a hearing will be scheduled.

If you have a question regarding a domestic violence situation and are seeking a restraining order, please contact our office at 1-800-941-6730 for a free consultation or visit www.sagarialaw.com. Our team of Family Law Attorneys can assist you with all aspects of your case. We have attorneys in San Mateo, Monterey, Fremont, Salinas, Sacramento and San Jose.

Salinas Divorce Attorney Discusses Spousal Support and Domestic Violence

Most men who earn more than their wives are aware that in the event of a divorce they may owe some level of spousal support, formerly called alimony, to their wives. They may not know the amount or the duration but they are aware of the risk. During a recent consultation with a client I went over the details of how spousal support is calculated and ran the support numbers for him. We discussed the factors that go into calculating spousal support and the likelihood of how long the amount would be owed. It was not until the very end of the conversation that he brought up the fact that his wife had been convicted of domestic violence against him.

This case illustrates the classic example that a man who is a high earner, as in this case, is somewhat resigned to the idea of paying spousal support and does not necessarily considered his wife’s domestic violence as an important issue to bring up immediately. Women who are the victims of domestic violence will be much more likely to bring it up immediately, most likely because they want a restraining order. Men may feel like they can protect themselves so they do not feel they need a restraining order.

What my consultation was not aware of is how spousal support and domestic violence are connected under the law. If a spouse has been convicted of domestic violence against the other spouse within the last five years then under California law there is a presumption that the injured spouse should not have to pay spousal support to their abuser. Therefore my consultation would have a good case to make to the court that even though he would normally owe spousal support that he should not have to under these circumstances because of his wife’s criminal conviction of domestic violence against him.

If you have any questions about spousal support or domestic violence or any other family law issue then please contact Sagaria Law at 1-800-941-673 or vistit us a www.sagarialaw.com to schedule a free consultation at the office location nearest you. We have offices in Salinas, Monterey, San Jose, Fremont and Redwood City.

Salinas Family Law Attorney Discusses Restraining Orders

Unfortunately during the time of separation from a spouse or significant other while emotions are raw there can be a serious risk of domestic violence. This was demonstrated on September 7, 2008 in Chico in the very tragic murder of Elizabeth Henningsen who was shot by her estranged husband Mark in front of their children. According to reports the couple had engaged in violent arguments but Elizabeth did not consider her husband a threat. Her divorce attorney told the media that she had advised Elizabeth to request a restraining order but Elizabeth said no. According to reports Mark had moved to Sacramento but was often seen in Chico.

A restraining order is certainly not appropriate in every divorce case but it is something that should be considered very seriously if your estranged partner has shown any tendencies of domestic violence. A restraining order prevents the restrained party from any contact with the protected party and any violations of the restraining order are a criminal matter. Exceptions can be made if needed for the peaceful exchange of children for visitation. A request for a restraining order can also include a request for child custody and visitation orders. If needed orders can include supervised visitation for the restrained party to visit with the children.

A restraining order request can also include any requests that are needed for child support and/or spousal support. If there is a need to exclude the restrained party from a residence that can also be requested in a restraining order. If you have any questions about whether or not a request for a restraining order would be appropriate in your case please contact us to schedule a free consultation at the location nearest you. We have offices in Salinas, Monterey, San Jose, Fremont and Redwood City.

San Jose Family Law Attorney Discusses Family Law Restraining Orders

For obvious reasons claims of domestic violence are taken very seriously in the family court. Unfortunately some people choose not to fight a restraining order without understanding that doing so will prejudice their custody rights and potentially have a negative impact on their immigration status or job prospects. A restraining order is usually generated in one of two ways. In the more serious of the two circumstances there is some argument between the spouses that leads to either someone in the household or in the neighborhood calling the police. When the police arrive the alleged victim will tell the police that he or she is afraid for his or her safety or if there is some visible injury such statements will not even be necessary. The police can then offer the alleged victim an immediate emergency protective order which is obtained by calling an on call judge and relaying the circumstances. This type of criminal protective order lasts for five days in order to give the alleged victim time to file a request for a civil restraining order. The police at their discretion will decide whether or not to arrest the alleged abuser. If an arrest is made then a police report and request for charges will be sent to the District Attorney’s Office and at their discretion charges will issue. If charges do issue then another criminal protective order of a longer duration may also issue in criminal court.

A request for a restraining order can also be requested if there has never been any police involvement. This occurs by filing the request for a Temporary Restraining Order (TRO). This request is made in writing and submitted to the Court where it will go to a Judge who will make a determination as to whether or not it will be granted. At this time notice will not be given to the opposing party so the Judge will make the determination on the alleged victim’s writing alone. If it is granted the TRO will last only until a hearing can be held on the request for a restraining order which typically happens in about 14 days. The alleged abuser must be served with the initial request for the TRO and is given an opportunity to respond in advance of the court hearing.

At the time of the hearing the alleged abuser is asked whether or not they agree to the granting of a restraining order. Some people consent because they do not want to argue about it in court and because they do not want further contact with the alleged victim so they do not fight it. The problem is that they do not realize the consequences of consenting to a restraining order. Under Family Code Section 3044 a restraining order can prevent the restrained party from having sole or joint custody of their children. In addition it can very severely impact other custody and visitation rights. Additionally it is also important to consider your immigration status and/or your job prospects before agreeing to a restraining order. If you are applying for a visa, a green card or for U.S. citizenship having had a restraining order could negatively impact your chances. It is also important to consider your career goals because if you are considering applying for a job where you need a security clearance or where a background check would be run having had a restraining order could hurt your chances. Additionally you cannot own a firearm during the time the restraining order is in effect so that would bar approval for most law enforcement jobs.

If you need to defend a restraining order in family court or if you need a restraining order for your protection please contact our office for a free consultation where we can advise you of your options. We have offices in San Jose, Fremont, and Monterey where our team of family law attorneys would be happy to go over your rights and advise you how to proceed.

October is designated as National Domestic Violence Awareness Month, and San Francisco Bay Area family attorneys are aware of several notable events occurring in Santa Clara County that address this serious issue. Among these events is the Walk to End Domestic Violence, which will take place from 11:30 a.m. to 1:30 p.m. at San Jose City Hall, and culminate with a free community lunch and informational fair at Cesar Chavez Plaza. Additionally, individuals who wish to seek resources related to domestic violence may do so at an information fair at Palo Alto high school on October 30 between 6 and 8:30 p.m.
As indicated by the recent tragic case of 6-year old Oscar Jimenez Jr., the San Jose boy who was allegedly beaten to death by his mother’s boyfriend, it is vital that people in the Bay Area and across America educate themselves on this issue. According to court documents that have surfaced in the Jimenez case, Samuel Corona had a long history of domestic violence charges that eventually culminated in the murder charges he is currently facing. In fact, police records on Corona indicate that his years of imprisonment were the only years he did not face criminal charges for some type of violent incident. After meeting his first girlfriend, Stephanie Love, at the age of 13, Corona embarked on a path of continual run-ins with the law that evolved into episodes of domestic violence once Love became pregnant with his child. After fleeing Arizona with a warrant out for his arrest, he eventually landed in San Jose, California, where his pattern of violence continued with his new girlfriend, Kathryn Jimenez—the mother of Oscar Jimenez.
Perpetrators of domestic violence generally have a history of engaging in violent episodes. If you or someone you know is affected by domestic violence, our Bay Area family lawyers advise you to seek legal help immediately. The case of Oscar Jimenez should serve as a sad lesson to anyone involved in a violent relationship –the cost of failing to seek the appropriate help could be inestimable.

Recent Updates from one of our San Jose Divorce Lawyers reports that Pentecostal evangelist Juanita Bynum has filed for divorce from her husband and business partner, Bishop Thomas Weeks III, following a brutal domestic violence incident that has inspired Bynum to focus her fame and energy on advocating for victims of domestic violence. In a press conference on Tuesday, September 6, 2007, Bynum addressed the August 21 incident, and reassured her fans and colleagues that she viewed her emerging role as the self-proclaimed “face of domestic violence” as a “social contribution.” Shortly thereafter, Bynum appeared on an international Christian talk show to reclaim her position in the national spotlight, and news began to trickle through the airwaves that she had served Weeks with a divorce petition. Weeks, who blames the devil for Bynum’s domestic violence accusations, is currently facing multiple charges related to the August 21st beating, including felony aggravated assault, felony terroristic threats, and two misdemeanor counts of simple battery. If convicted, he may serve a maximum prison sentence of 27 years. Although Weeks maintains that he hopes to work things out with Bynum, a future reconciliation does not seem very likely. Bynum’s divorce petition cites “cruel treatment” as a main argument for ending their marriage, and states that the union has been “irretrievably broken.”

Continue reading "Celebrity Divorce Update: Juanita Bynum " »

The Procedure Task Force and the Judicial Council’s Domestic Violence Practice will sponsor two statewide public hearings this month to obtain feedback on proposed practices and draft guidelines intended to improve the handling of domestic violence allegations by California Courts.

During both hearings, testimony will be heard from different speakers, such as family law attorneys, judges, prosecutors, advocacy, groups, criminal defense attorneys, public defenders, batterer intervention program providers, probation officers, other experts, and the public.

The purpose is to improve usage of Domestic Violence Prevention Act restraining orders, court leadership, entering the orders into California’s database, criminal law procedures, and firearms relinquishment.

Continue reading "Domestic Violence Cases Within The California Court System To Be Evaluated " »

Mike Robinson, a lobbyist in California, says he has multiple Republican sponsors who are willing to draft legislation to amend California’s domestic violence laws so that they refer to “victims” of domestic violence and not just women. This language, he says, has been approved by the Legislative Counsel. He is also looking for a Democratic sponsor.

Also, earlier this year, a group of man who claim they were threatened and battered by their wives appeared in court. In Woods v. California, the four plaintiffs said that they did not receive their constitutionally mandated equal protection when they sought out police safeguards and shelter service as victims of domestic violence.The plaintiffs in the case did not seek any damages. Instead, they intended to force gender-neutral law enforcement services related to the state’s health, penal, and government codes.

Robinson and the plaintiffs in Woods say they are not trying to reduce the services available to battered women, they are merely asking for services for men.

Continue reading "Advocates For Male Domestic Violence Victims Move Closer Toward Gender-Neutral Laws " »

Sportscaster Jim Lampley has been ordered to complete a 52-week long domestic violence counseling course and serve three years probation. He is also mandated to do 40 hours of volunteer service and pay $674. The announcer pleaded no contest to the misdemeanor charge that he violated a restraining order to stay away from his ex-girlfriend whom he is accused of attacking on New Year’s Eve. In criminal law, pleading “no contest” in a criminal court has an effect equal to pleading guilty.

The judge also issued a protective order, which forbids Lampley from coming within 100 yards of Candice Sanders, his ex-girlfriend, for three years. The order can only be changed if Sanders consents to it.

Sanders, a former Miss California USA, had a temporary order against Lampley. He violated the order and was arrested when he showed up at her house. He was released, posting a $35,000 bail.

Continue reading "California Sports Announcer Jim Lampley Pleads No Contest To Violating Restraining Order" »

A man who is a federal corrections officer at the Victorville Federal Penitentiary has been arrested for domestic violence, for allegedly beating his live-in girlfriend so badly that she had to be hospitalized. Officer Robert Thompson already had prior domestic battery convictions before this incident, and officials from the San Bernardino County Sheriff’s Victorville station say that under California law, he should have been fired from the penitentiary and lost his firearm privileges upon his first conviction.

A detective investigating the case says that the man had been beating his girlfriend for the last few years, but that this time, he had kicked her head, ribs, and face, rendering her unconscious to the point that she had to be hospitalized.

The woman then left the area, afraid for her safety, and hospital workers were the ones who reported her injuries to police. Thompson tried to evade police and continued working at the penitentiary where he was later arrested on domestic violence, assault with a deadly weapon, and suspicion of criminal threats. In certain cases, use of a body part to inflict serious and potentially fatal injuries can be considered as using a deadly weapon.

At Sagaria Law, P.C., or attorneys are experienced at helping people who have been the victims of domestic violence. We can help you obtain a temporary restraining order (TRO) that will prevent the violent party from approaching you, your home, your place of work, or your vehicle. A TRO can protect you from the person that is abusing you, and we can accompany you in court where we can help you prove your domestic violence case.

Continue reading "Federal Correctional Officer In Victorville, California Is Arrested For Domestic Violence" »

According to new findings by the U.S. Department of Justice, domestic violence incidents seems to have gone down by more than 50% from between 1993 and 2004. This, however, does not accurately bring to light the often-ignored problem of male victims of domestic violence.

The DOJ’s National Crime Victimization Survey was conducted by talking to members of sample household regarding crime. Participants were asked questions such as, “Did you call the police to report something that happened to you which you thought was a crime?” and “Has anyone attacked or threatened you?” During these questions, male victims of domestic violence were more likely to respond “no” than were their female counterparts.

According to research results, male domestic violence victims are less likely to report such crimes. A lot of men reportedly believe that police officers won’t take them seriously. They may also worry that their female abusers will turn the tables on them and claim that they were abused instead. Fathers who are victims of domestic violence may also worry that reporting the abuse could lead to a legal separation and divorce, which could result in their abuser getting custody of the children.

According to the survey’s results, men were less likely to see the domestic violence abuse they suffered as a crime. Many of them also considered asking for help to be cowardly or unmanly. They also seemed to see their female partner’s violence as just her being “moody,” “angry” or “hormonal.”

Continue reading "DOJ Report Offers New Insights On Male Victims Of Domestic Violence" »

U.S. Senator Joseph Biden is drafting a new bill that would create a network of 100,000 legal volunteers who would work for domestic violence victims. Biden is the author of the 1994 Violence Against Women Act that developed and funded federal programs to aid domestic violence victims.

Studies by the Institute for Law and Justice and the National Center for Victims and Crime say that only 170,000 low income survivors of domestic violence obtain legal representation for their case each year. This figure is less than 20% of the more than 1 million people who become victims of domestic violence annually.

Biden believes that domestic violence is an issue that needs to be addressed every year by the government. "Combating violence in the home is like cutting the grass," said Biden.

If approved, Biden’s bill would develop a network of attorneys willing to volunteer their services in representing domestic violence victims. The bill would also establish a fund to help lawyers who spend most of their professional life representing domestic violence victims by making it easier for these attorneys to pay back their school loans.

Continue reading "U.S. Senator Biden Drafts Bill For Domestic Violence Victims" »

A California state auditor has found that only about 50% of domestic batterers that have been ordered to join an intervention program ever complete their training, while up to 25% of the individuals who were convicted of domestic violence never even join the program—nor do these batterers get penalized for the truancy, because the courts are never notified that these individuals did not complete the training.

25,000 convicted batterers, who were supposed to join an intervention program (a year long course that involves counseling), were surveyed for the results, says Elaine Howle, the state auditor. Her office also interviewed probation workers in all 58 California Counties. They also reviewed specific cases in Riverside County, Los Angeles County, Butte County, and San Mateo County.

Officials say the failure to complete an intervention program is probably a cause for repeat offenses.

Domestic Violence Statistics For California:
· In 2004,169 murders were committed as a result of domestic violence.

· California law enforcement agencies reported 181,362 domestic violence calls in 2005.
(Department of Justice, Criminal Justice Statistics Center)

Continue reading "California’s Domestic Violence Intervention Training Program Needs Improvement, According To State Auditor" »

Domestic Violence Awareness Month takes place every October to raise awareness of domestic violence, remember the millions of victims who have been injured or killed as a result of domestic violence, and honor its survivors.

In Santa Clara County, three Kaiser medical professionals, Lisa Munoz, Cassandra Floyd, and Stephanie Rodriguez, were honored on October 4 with a fountain dedicated to their memory and the memories of all victims of domestic violence.

Optical services employee Munoz was killed by an ex-boyfriend in 1999. Floyd, an OB-GYN at Kaiser Permanente’s Santa Teresa Medical Center, was murdered by her ex-husband in 2001. Rodriguez, a medical education coordinator, was killed by her husband in 2003.

Continue reading "In San Jose, Domestic Violence Victims Are Memorialized By Kaiser" »