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Palo Alto restraining order defense attorney child custodyIf you have been accused or convicted of domestic abuse, what happens when it comes time to determine custody of your children? In California, criminal law and family law are considered separate matters. However, accusations of domestic violence or abuse can affect your parental rights. When facing allegations of abuse, an attorney can address your concerns about child custody and help you determine how to defend against these accusations.

The Potential Impact of Abuse Charges

In California, alleged victims may seek legal protection against their accused abusers. If a person obtains a restraining order, it may make a variety of requirements that an alleged abuser must follow. These requirements may include: 

  • No-contact -- The alleged abuser may not make contact with his or her alleged victim, either physically or through calls, texts, emails, or any other means.
  • Provisional contact -- This option is sometimes used in cases involving custody, so that the alleged abuser may communicate with the victim about the children only.
  • Stay-away provision -- The alleged abuser must stay a certain distance away from the alleged victim.
  • Move-out provision -- The alleged abuser must move out of the home that he or she has lived in with the alleged victim.
  • Firearms provision -- The alleged abuser must give up any firearms and may not purchase any additional weapons.
  • Counseling provision -- The alleged abuser must attend counseling with a psychologist, social worker, or drug or alcohol abuse program.
  • Provision regarding payment of expenses -- The alleged abuser must pay bills related to the alleged abuse, such as moving expenses, medical costs, loss of earnings, etc.

Restraining orders may also extend to the alleged victim’s family members. However, even when accused of abuse, a parent will typically be allowed to have regular access to his or her child unless it is proven that the child has been abused or endangered through the abuse. In some cases, a parent accused of abuse may be required to have supervision present when spending time with their child until it can be demonstrated that the child is not in danger of harm when in their care.

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Santa Clara County restraining order defense attorneyOften, an order of protection, or restraining order, is issued as a result of a domestic violence allegation. In California, domestic violence is defined as abuse or threats of abuse when the abuser and the abused are in an intimate relationship, or are closely related by blood or marriage. If you have been served with a restraining order, it is important that you fully understand the things that the order can and cannot do and how it will affect you.

Who Can Ask For a Restraining Order?

In California, a person can ask for a domestic violence restraining order if they and their alleged abuser are:

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San Jose domestic violence restraining order defense attorneyThe state of California takes domestic violence very seriously, and state laws allow someone who has been abused or is under the threat of harm to receive a restraining order to protect their safety. While it is important to protect the victims of abuse, false accusations against alleged abusers can result in a great deal of emotional distress, financial hardship, and damage to personal relationships. If you have been served with a domestic violence restraining order, you should understand your rights and the steps you can take to defend against the charges.

Restraining Orders in California

A person can seek a restraining order against a spouse, ex-spouse, domestic partner, close family member, or parent of their child who has abused or threatened to abuse them. When granted by a judge, restraining orders can require someone to stay away from the alleged victims and their children and relatives, move out of their house, pay child support and/or partner support, or follow certain other orders.

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San Jose Green Card Marriage Domestic ViolenceFraudulent green card marriages are nothing new. With the advent of films like “The Proposal,” it is well-known that many marriages take place for the sole purpose of a green card or to avoid deportation. In 2009, about 506 of 241,154 green card petitions were denied for fraud. However, it is unknown how many fraudulent marriages have actually occurred. 

Unfortunately for many, a so-called “green card marriage” often leads to accusations of domestic violence. Immigrant victims of domestic violence do not have to wait for naturalization to divorce their spouse and stay in the U.S. Instead, they can apply for a U visa, which is a visa that provides nonimmigrant status to victims of certain qualifying crimes. U visa recipients can apply for a green card after a certain number of years. 

In order to be eligible for a U visa, the victim must agree to aid in the investigation or prosecution of the crime he or she was a victim of. 

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Domestic ViolenceIf you are going through a divorce, being accused of domestic violence can negatively impact your case. Many people incorrectly believe that domestic violence charges are only addressed in criminal court and will have no bearing on a family law case. However, that is far from the truth. A mere allegation of domestic violence can affect the amount you may be required to pay in spousal and child support and can restrict your child custody and visitation rights.

Child Custody and Visitation (Parenting Time)

If there is a domestic violence charge against you while you are going through divorce proceedings, you could lose custody of your children. Whether you are being accused of abusing either your spouse or your children is irrelevant. Any alleged abuse committed against family members may result in the court finding that there is a rebuttable presumption that you are an unfit parent. In addition, because the court is committed to protecting the best interests of children, you may not be awarded custody if the court believes it would be against your children’s best interests.  

If you are not granted child custody, you may share parenting time with the other parent. However, if you are accused or convicted of family violence, then the visits with your child could be significantly limited in length and frequency. In addition, you may be required to have your visits supervised by a neutral third party. 

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