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This news article did not occur in the Napa Court System, however it gives insight to help with your case!
Please read below, the events of an actual family law case, that points up much of the problem, and the strategic moves that you must make BEFORE the Court makes a finding that the Father has engaged in any sort of domestic violence.
Please don't misconstrue this posting as "legal advice". It is simply the opinion of a supporter who wanted to share what she learned watching corrupt courts grant Temporary Restraining Orders (TROs) based on drama rather than facts. Those TROs, once set in motion, destroy lives.
After the Court has made an order for a TRO or preliminary injunction, it's too late to roll back the tide. You have to attack it AT THE OUTSET by deposing the accuser IMMEDIATELY. Many fathers are falsely accused of domestic violence and then lose the legal right to have physical custody of their children.
California family code section 3044(a) states in pertinent part that: if a spouse is found liable for domestic violence within five (5) years of filing a petition for divorce or legal separation, then there is a rebuttable presumption that the spouse is unfit to have physical custody of the minor children.
(this code provision is triggered when the wife files a "temporary restraining order" against the husband claiming domestic abuse-- even though the husband -- never touched her.) Why would she lie? Very simple. "follow the money and you'll get the answer". So "heads-up".
Further, if there is a finding of domestic abuse, the liable spouse accused of the act -- must now be monitored, (supervised visitation); that liable spouse must attend anger management class and return proof to the court of completion; and that liable spouse must take a parenting class and return proof to the court of completion.
This is an onerous burden for a working spouse who may not in fact have committed any domestic violence at all. Moreover, albeit a rebuttable presumption exists, it's difficult to prove a negative - that domestic violence did not take place. Hence, the earlier the accusation is challenged, the better.
Such was the case with a client who was accused of domestic violence by way of a temporary restraining order ("tro"). The client was unrepresented by counsel when he entered into a stipulation to give his wife and minor children exclusive use and possession of the family residence and both spouses agreed to not strike, annoy or harass the other spouse. The stipulation was then filed with the court.
(The father, who became our client, simply wanted peace of mind. The opposing spouse wanted sole, physical custody of the minor children plus spousal support, to ensure a lengthy revenue stream without having to work, given her alcohol addiction for 20 years.)
When the client later retained our office to represent him, it was then that he found out that a temporary restraining order had been filed with the court; and that a hearing had been set by the court, unbeknownst to him.
when the client retained our office to represent him, the opposing counsel realized that the "temporary restraining order" had better in fact surface; and it was delivered to our office (after the client had already signed the stipulation filed with the court.)
The wife of 20 years sought full, physical custody of the minor children because she was a confessed alcholic of 20 years; and needed full, physical custody to ensure child support for the next ten years, as well as spousal support.
To ensure that she would obtain physical custody, notwithstanding her alcoholism, she filed a temporary restraining order claiming domestic violence -- which triggered the operation of family code section 3044(a) (set forth above).
In order to avoid the operation of family code section 3044(a) (which would have aborted the father's chance of obtaining custody--when in fact the father was the fit parent to receive custody in the first place) it was necessary to ask the court to continue the tro hearing in order to take the deposition of the accusing spouse to determine the veracity of her claims of domestic violence contained in the tro.
It was essential to request the trial court to continue the hearing on the tro because had the tro not been challenged, the trial court judge would have ruled on the tro, made it permanent for the next 5 years; and effectively barred the father from being considered as the custodial parent for the minor children - under family code section 3044(a). The only recourse at that point would have been an appeal - because no judge is going to reverse himself once he has ruled, unless he is forced to change his ruling by an appellate court,
A deposition is sworn testimony taken in a case wherein the witness, or deponent, is placed under oath by an officer, ordinarily a notary public, and the witness then answers questions put by both sides of the case. The deposition is normally done pre-trial and in one of the attorney's offices.
The deposition process is governed by court rule and the questions and answers are recorded in writing and quite often by video. The statements of the witness may be later introduced into evidence at trial should the witness become unavailable or to impeach the available witness with the prior statements.
The taking of depositions is a very valuable part of the discovery process and many a claim will stand or fall on what the witness will actually tell the jury.
When the request was made of the court by the attorney, that the tro be continued to take the oral and video-taped deposition of the opposing party who made the accusatory statements contained in the tro, the opposing counsel then dropped the tro immediately (like a hot potatoe), and the TROs was dismissed by the court.
Opposing counsel knew that the opposing party's testimony was vulnerable and could not withstand scrutiny, would then be used at the continued tro hearing for purposes of impeaching the opposing party. The parties through their attorneys then agreed to joint custody of the minor children.
However, if the unfit parent can make a claim that the fit parent has committed domestic violence within 5 years of filing the divorce, then the unfit parent can win on that point. The objective is to use the "deposition" at the very beginning when this scenario presents itself. Stop the accusations and meet them head-on at the beginning. Otherwise, it's an uphill battle to disprove the lies later.
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