Beverly Hills, CA
Saturday, October 13, 2012
In California, Penal Code §243 is the statute the deals with battery between a spouse, cohabitant or other intimate. The statute states that "A battery on one of the following persons is punishable by a fine of not more than $ 2,000 or by imprisonment in a county jail for not more than 1 year, or both."
The parties must have had a dating relationship as defined as, "Frequent, intimate associations mainly characterized by "the expectation of affection or sexual involvement, independent of financial considerations." (P.C. 243(f)(10).)
If defendant is granted "probation or a suspended sentence must participate in, for no less than 1 year, and successfully complete a batterer's treatment program or, if none is available, another appropriate counseling program. (P.C. 243(e)(1).) A defendant who has been previously convicted of a violation of P.C. 243(e) and sentenced must also be imprisoned for 48 hours. However, on a showing of good cause, the court may elect not to impose this mandatory minimum imprisonment. (P.C. 243(e)(3).)"
In Family Law Cases, a criminal domestic violence conviction affects both child custody/visitation matters and spousal support matters.
Child Custody/Visitation Matters
Family Code §3044(a) states, "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence." What this means is that it will be the burden of the party that has found to have committed domestic violence to show that he or she should have joint physical or legal custody
Spousal Support Matters
Family Code §4320(m) provides that when there is a criminal conviction of domestic violence there is a rebuttable presumption that the convicted party cannot obtain a spousal support order against the other part; If that conviction is within 5 years of the parties filing for marital dissolution.
Given the above issues it is important that your attorney understands both the criminal and family law implications your matter has.
Evan T. Sussman
Beverly Hills, CA