San Diego Divorce Attorneys BlogArticles Posted in Domestic Violence
Temporary Restraining Orders – More Than Just Paper?
Twenty-two year old Sophia Ortiz obtained a temporary restraining order issued to protect her from the father of her children Julio Martinez. The couple’s two young children are only ages one and two. After the restraining order was issued, Martinez blatantly disobeyed it by appearing at Ortiz’s apartment twice. Each time Ortiz called the local police and by the time they arrived Martinez had fled the scene. The police continued to search for Martinez while he made his way back to the apartment and succeeded in breaking in.According to authorities, upon entry into the apartment, Martinez brutally murdered Ortiz in the presence of his two children. When the police arrived back at the apartment, they discovered Ortiz in the bedroom with a carving knife still in her back; she died during surgery early the next day. The children were physically unharmed and Martinez was apprehended. He is currently being held on one million dollars bail.
Many are outraged by the lack of protection provided to Ortiz by the judicial process, especially the temporary restraining order (TRO). Unfortunately approximately 11% homicides committed throughout the United States between 1979 and 2002 were attributable to domestic violence. Considering this statistic, it is estimated that 3,300 children lose a parent every year to domestic violence related homicides in the United States. However, it is important to note that the TRO was never served on Martinez. Any relationship involving domestic violence can be dangerous for both parties at all times, particularly when the victim attempts to end the relationship and leave his or her abuser. A TRO can provide the victim with the power to have his or her abuser arrested if they violate the stipulations of the order.
In San Diego, an estimated one out of every four children, like Ortiz’s children, is directly exposed to domestic violence either has a victim or a witness. Regardless of whether a child is physically abused, domestic violence will have an enormous impact in many other areas of his or her life. According to the American Psychiatric Association, children merely exposed to domestic violence are at risk for a variety of developmental problems, difficulty in school, aggressive behavior problems, psychiatric disorders, and low self-confidence. In addition to behavioral, developmental, and social consequences to children, children who witness domestic violence may have a resulting impaired educational attainment.
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Domestic Violence in the Spotlight
The overnight hit television show Glee has become extremely popular with its teenage audience. The show follows a group of fictional high school students as journey through their teenage years. One of the show’s attractions is its many singing and dancing numbers performed by the students for their glee class. Glee’s most recent episode entitled “Choke” featured a more serious topic, domestic violence. Harsh criticism has followed the show’s depiction of this important cause, one critic stated “Choke is a morally reprehensible hour of television, one from which the show many never fully recover.” The most common complaint from viewers and supporters of the fight against domestic violence is that the show gave the topic an “insultingly short shrift”.
Domestic Violence at the Mexican-American Border
One key aspect of a domestic violence relationship is the cycle of power and control. San Diego community service programs such as the San Diego Family Justice Center recognize this cycle of abuse and help victims break through the destructive pattern. One method of control often utilized particularly by domestic violence abusers in San Diego is immigration status. San Diego’s location so close to the Mexican-American border is an ideal place for many Mexican immigrants. Further, some immigrants are native Spanish speakers and are unable or struggle to understand and/or speak English. Many abusers exploit this language barrier as a tool to maintain control over their partners. Because immigrants fear deportation and are uninformed regarding various United States’ laws and regulations in place to protect them, they feel trapped and continue to remain in abusive relationships.Domestic violence abusers use one or a variety of methods to use immigration status as a tool to manipulate and control their victims. First, the batterer may promise to file papers to legalize the immigration status of his or her victim. Once the victim believes he or she may have a chance to become a legal citizen, the batterer may fail to file, withdraw or threaten to withdraw the necessary paperwork. The victim’s immigration status becomes a weapon used against him or her. Congress passed the Violence Against Women Act (VAWA) in order to help domestic violence victims through this form of abuse by providing them with a method of gaining citizenship independent of their abuser. Although the act is entitled the Violence Against Women Act, men may also apply for relief under VAWA provided they satisfy the eligibility requirements. Under the act, a victim may apply for permanent-resident status and neutralize the fear of deportation.
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Texting Can have a BIG Impact on your Divorce Case
We have blogged several times about the potential problems that Facebook and other social media sites can have on a divorce. The same potential for problems also applies to the text messages you send. Although it is sometimes difficult to get text messages into evidence (meaning properly in front of a judge), once the text message is in evidence, it could change the outcome of your case!Unlike Facebook and other social media posts, text messages cannot be deleted or recalled. Any text that you send to your spouse, or even to a third party, can end up being used against you in a divorce. With phones now having up to 64 gigabytes of storage, or more, texts from many years ago could end up being presented as evidence to the judge in your divorce case.
• If you threaten to harm your spouse in a text, that may be the basis for a restraining order, or even criminal prosecution.
• If you call your spouse names in texts, the judge could end up with an unfavorable opinion of you.
• If you say one thing in your declaration (such as, “I do not use drugs”) and text something contrary to your spouse or a third party (such as, “I can’t believe how stoned I was at the party”), you will ruin your credibility with the judge.
In a recent story on NPR, Ken Altshuler, president of the American Academy of Matrimonial Lawyers, provided the following tips for keeping your texts out of court, upon which I elaborate:
• Do not text your spouse anything that you would not want a judge to see. This also applies to Facebook and other social media posts, messages or comments, emails, and even voice mail messages. It is always best to assume that any text, anything you write or any voice message you leave for your spouse will end up in front of your judge. Some examples of what not to post, blog or text about can be found here.
• If your spouse or former spouse sends you an inappropriate text, do not respond in kind because a judge will see that. The judge usually does not care who started an inappropriate exchange because the exchange is usually just a small part of the bigger picture. In one of my cases after reviewing hateful emails back and forth between the parties, the judge (slightly misquoting Mercutio’s famous line from Shakespeare’s Romeo and Julie), said “A pox on both your houses.” When the other party blurted out, “She started it!” the judge replied, “Sir, two wrongs do not make a right – and your emails back to here were totally inappropriate, no matter who started it.”
• Do not send messages that set your spouse up for an inappropriate or angry response. On the other hand, some Judges will look into who started it. You do not want your judge to find that you were the party that started it, or someone who is baiting the other side. This could ruin your credibility with the judge for the rest of your case.
• If you are worked up and want to send your spouse a message, take time to calm down before putting anything in writing. Again, if it is in writing, you must assume that your judge will eventually read it. If you are unsure about a written response to your spouse, send it to your attorney for review before sending it to your spouse.
Always remember, do not text anything to anyone that you would want the family law judge in your case to see or read.
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How Does Domestic Violence Impact Custody Cases in San Diego?
In San Diego County an estimated one out of four children is exposed to domestic violence either as a victim or a witness. According to the San Diego Domestic Violence Council over 500 women and children need to stay in a shelter each day. In a relationship that involves a history of domestic violence, if a partner decides to leave, he or she will have many questions about how that history can impact a child custody case.
Understanding what constitutes domestic violence can be complex. Under California Family Code section 6211, domestic violence is defined as abuse perpetrated against specific categories of family members. Mental health professionals agree that domestic violence is a pattern of behavior characterized by an abusers attempt to control his or her victim through the use of a variety of techniques.
In a case that does not involve domestic violence, the court decides the outcome of a custody case based on the best interest of the child. The court considers a variety of factors such as:
1. The health safety, and welfare of the child 2. Any history of abuse by one parent
3. The nature and amount of contact with both parents 4. Habitual or continual illegal drug or alcohol abuse by either parent
There is a prevalent belief in society that when a couple separates, it is in the best interest of the child to have the most extensive relationship possible with both parents. This assumption is true in a typical separation. However, a separation involving domestic violence is not a typical separation. Family Court judges have many options to consider when deciding which parent, or combination of parents, will make decisions on behalf of a child and take care of that child. If a parent has sole legal custody, he or she has the exclusive right and responsibility to make decisions for the child regarding his or her health, education and welfare. If a parent has sole physical custody, the child will live with that parent subject to the visitation rights of the other. Any joint custody arrangement involves the sharing of these rights and responsibilities.
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Do I qualify for a Domestic Violence Restraining Order in San Diego County?
More than 5,000 phone calls of domestic violence are reported to the domestic violence hotline in San Diego County per year. It is a serious problem that has life threatening consequences. It is estimated that there are thousands of domestic violence incidents that go unreported in San Diego alone. There are many different forms of domestic violence that go unreported because victims don’t realize they qualify for a domestic violence restraining order.
A restraining order is an order made by the Family Court to protect victims, children and families from abuse (physical, emotional, verbal, sexual), threats of abuse, stalking and harassment. The abuse can be spoken, written or physical. In order to qualify for a domestic violence restraining order you must have a “relationship” with the abuser. You qualify if you are married, divorced, separated, registered domestic partners, have children together, are dating or used to date, living together or used to live together with the abuser.
You may qualify if you have experienced any of the following types of abuse:
R&B Singer Rihanna’s Restraining Order Against Chris Brown Modified: An Overview of the DVPA
This month’s edition of Rolling Stone magazine features a cover story on R&B singer Rihanna, in which she opens up about why she agreed to a modification of her restraining order against ex-boyfriend and fellow R&B singer, Chris Brown. The restraining order stems from an assault that occurred on the then couple’s way to the 2009 Grammy Awards.
Discussing her decision, Rihanna explained:
“It doesn’t mean we’re gonna make up, or even talk again. It just means I didn’t want to object to the judge.”