A family argument can become very emotional and possibly result in physical harm. And when it does, the argument often ends with one spouse calling the police to make a report. Should this happen to you, here is what to expect when you are arrested either at the scene or later, by a warrant. Remember, your failure to address an act of domestic violence can not only affect your ability to protect yourself but may also raise questions about your ability to protect your children.
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Domestic violence is the willful intimidation, physical assault, sexual assault, or other abusive behavior that is part of a systematic pattern perpetrated by one person in a close relationship with another.
Domestic Violence Arrest
When you are arrested for a charge of domestic violence you will be booked at the Sacramento County jail. You will be able to post bail immediately unless you were charged with violating a court protective order, in which case you will be held over to appear at a bail hearing before a magistrate.
Those who are held over for a bail hearing are sent to a special housing unit that is restricted to domestic violence offenders who have no gang affiliations or prior prison term. Inmates must agree to participate in an awareness program and they may be visited by their victims in a visiting area where all conversations are taped.
An attorney with the Domestic Violence Unit will review your case before you are arraigned to determine if you should be prosecuted. This determination is often based on whether or not there is evidence of a visible injury to your victim. Depending on the circumstances, your case can be filed as either a misdemeanor or felony.
Arraignment is held within 48 “court hours” (excluding Saturday, Sunday, and holidays) in the Domestic Violence Home Court five days each week except for holidays. Being arrested on a Friday and not being able to post bail means that you will staying in jail for the weekend. At your arraignment, a public defender will be assigned to represent you if you are indigent otherwise, you will have to hire an attorney should you want to be represented. At your arraignment, the magistrate will set a court date and, unless the victim objects, the court will issue a criminal order of protection.
The plea negotiation process begins at the next hearing after your arraignment. Plea negotiations are held in a judge’s chambers. If no plea agreement is reached at the first hearing, the case is continued for a second hearing. If no plea result occurs at this hearing, the case is set for trial.
After your trial and before sentencing, the court may order a presentence investigation. Orders for a presentence investigation are routinely ordered in a felony case, except where a plea agreement includes a specified state prison sentence. In misdemeanor cases, however, a presentence investigations is less common.
Domestic Violence Restraining Order
A domestic violence restraining order is a court order that protects you from abuse or threats of abuse from a person with whom you share a relationship. You need to seek protection if you, or your child, is being abused. A parent who delays or does not report abuse may not only be exposing themselves and their child to further harm, but may be jeopardizing their rights to custody. Take immediate action if you, or your child, are being abused, to protect yourself and your child.
You can seek a domestic violence restraining order against someone with whom you share a close relationship, this includes:
- Registered domestic partners,
- Divorcees or separated individuals,
- Current or former lovers,
- Live-in lovers,
- Other close relations; siblings, parents, and grandparents.
Civil Harassment Restraining Order
You can request a court order to restrain others, with whom you do not share a close relationship with, from continued abuse. A civil harassment restraining order can be used to restrain neighbors, roommates, coworkers, or more distant family members.
Effects of a Domestic Violence Restraining Order
- No contact with either you, your children, other relatives, or those who live with you.
- Move out of the house you both occupy.
- Stay away from your home, work, or your children’s schools.
- Relinquish all firearms and no possession of a firearm.
- Follow child custody and visitation orders.
- Pay child and/or partner/spousal support.
- Stay away from any of your pets;
- Pay certain bills and release and/or return personal property.
Served with a Domestic Violence Restraining Order
If you have been falsely accused of abuse and are facing a domestic violence restraining order or a civil harassment restraining order, you need to take immediate action to protect your rights. Should you not act, you may suffer the following effects:
- Limitations on where you can go or what you can do.
- Move out of your home.
- Limit your ability to see your children.
- Restrictions on your right to own or possess a handgun.
The Effect of a Domestic Violence Restraining Order on Custody Case
Your child custody matter will be considered as domestic violence case if, within the past 5 years, one parent was convicted of domestic violence against the other parent or a court has decided that one parent committed domestic violence against the other parent, their children, or any siblings of the child. And, there are special rules which the judge must follow in awarding custody should a court decided that one parent committed domestic violence in the past five years against the other parent, their children or siblings of that child.
If the Court makes such a finding there is a rebuttable presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. This legal presumption can be overcome and custody may be awarded to the parent who committed the domestic violence if:
- It is in the best interests of the child.
- The perpetrator has completed a 52-week batterer’s program.
- The perpetrator has not committed any other acts of domestic violence.
- The perpetrator has complied with all other court orders.
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