Law Offices of Erik Steven Johnson

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San Jose Domestic Violence and Child Custody Defense Lawyer

Campbell Domestic Violence Child Custody Loss Defense Lawyer

Helping Clients Accused of Domestic Violence Keep Their Children in Santa Clara County

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A criminal conviction for domestic violence can lead to the loss of custody of your children. Family Code section 3011 raises a rebuttable presumption that a parent accused of domestic violence is an "unfit parent" and that it is detrimental to the child's interest for the parent to have physical or legal custody.

A domestic violence conviction can lead to:

  • Loss of physical custody. After a conviction for domestic violence the family court may award sole physical custody to the other parent. This means that you will not be allowed to live with your child. You may also be denied rights to reasonable visitation or be subject to "supervised visitation."
  • Loss of legal custody. A conviction can lead to a loss of parental rights to make decisions for your child. You may be barred from making important legal and life decisions for your child, including education, health care and nutrition, travel, socialization, core beliefs and religion.
  • Loss of spousal support. Family Code sections 4325 and 4320(m) allow the court to deny spousal support to the spouse accused of domestic violence. If your spouse has been the primary breadwinner during the marriage the court may deny you spousal support where there is an accusation of domestic abuse, even a one-time event. Although a "rebuttable presumption," a conviction for domestic violence, may allow a family court judge to deny an award of spousal support.
  • Parenting classes. The court may also order the accused spouse to take anger management, parenting and domestic violence classes. If convicted the court will order participation in a 52-week domestic violence class. The family court may deny visitation of your children until one or more of these classes is completed.

A good lawyer understands all of the implications that an accusation of domestic violence has, not just in the criminal court but on child custody and parental rights. You must act quickly to preserve your rights as a father or mother and not allow the other parent to take your children away.

Protective Orders in Santa Clara County

Both the criminal and family courts have authority to issue protective orders, which may be "no contact" or "peaceful contact" orders. These restraining orders are reported to all law enforcement agencies in California under the California Law Enforcement Telecommunications System or CLETS.

  • Peaceful contact. A peaceful contact order requires that the accused spouse or cohabitant not harass, annoy, molest or otherwise interfere with the peace of the other spouse or cohabitant. The criminal court will generally only make such an order at the request of the alleged victim or complaining party.
  • No contact. A "no contact" restraining order prohibits any communication with the other spouse or cohabitant, directly or indirectly. This means that the accused person cannot call, email, write to or have any other person call, email or write to the other party.
  • Property restraint. After an arrest for domestic violence the court can prohibit you from entering the family home, thus keeping you from your children and personal property.
  • Emergency protective orders. If police arrive on a call of domestic violence the accuser can request a temporary emergency protective restraining order (EPRO). This takes effect immediately and does not require a judge to approve. However, such orders end in seven to 10days and the accuser will need to go to court to get a continuing restraining order.
  • Ex parte restraining orders. An accuser may request the family court for an order of protection immediately upon the ex parte application of the accuser in any domestic violence case.

Restraining orders can be modified or "tailored" to protect the accused's rights to custody and visitation and property. Such requests can also be defeated upon a hearing on the issues. A good lawyer knows how to tailor protective orders to protect his or her clients, or oppose them altogether, but action must be taken early to prevent protective orders or to lessen the impact of those orders.

Temporary Request For Orders

As a part of the domestic violence restraining order, the accuser may also make requests to the court to make other temporary orders. These include:

  • Temporary child custody and visitation
  • Immediate spousal and child support payments under the California guidelines
  • Immediate removal of the accused spouse or cohabitant from the family home and a grant of other property such as cars and pets to the accuser
  • An order that the accused pay the attorney fees of the other spouse or cohabitant and his or her expenses related to the alleged abuse

You have a right to be heard and respond to any request for temporary or permanent orders. You do not need to consent to anything that affects your rights, and you too can ask the court for specific requests. We know what responsive papers and declarations must be filed and how to argue these issues in court.

Representation Every Step of the Way

This area of the law produces complex strategy and extensive research and legal knowledge. Do not make the mistake of pursuing this on your own. Contact our San Jose, Santa Clara County domestic battery attorney at the Law Offices of Erik Steven Johnson at 408-246-3004.

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