There are two common situations where the custody of one’s child will come into play with respect to domestic violence in California. The first is if one is convicted of domestic violence (either against his or her intimate partner or against his or her child) and the second is if a child’s parents are divorcing or separating and one parent has an alleged history of intimate partner abuse. Under either scenario, it is imperative that an individual who would like custody of his or her child(ren) hires a qualified criminal defense lawyer and a family lawyer who will help favorably resolve child custody issues.

In California, domestic violence laws apply to all crimes that are committed against a spouse, former spouse, a child, the person with whom one lives or lived, the person with whom one has children, or a significant other or former significant other. When convicted of this type of crime, significant jail and/or prison time may await. If an individual who has a child is sentenced to imprisonment, the custody of that child will become a major issue.

When a court rules on child custody issues, it asks only one question – what is in the best interests of the child? Preference is usually given to both parents, unless one or both of the parents have demonstrated that they are unfit to parent. When a parent has been convicted of D.V. and is sent to jail or prison, his or her child will at least temporarily be taken out of that parent’s custody and, if the judge determines that it is safe, the child will be placed with the other parent or with a friend or family member if the convicted individual is a single parent. If there is no qualified friend or family member, the child will be taken into protective services. If the parent was convicted of a DV crime against his or her child, otherwise known as child abuse, he or she will definitely lose custody of his or her child until the court is convinced that the parent has been rehabilitated and will no longer pose a threat to his or her child.

Child custody will also be an issue when parents go through a separation or divorce. A recent study indicated that most contested custody mediation cases in California, regardless of demographics, involve a history of inter-parental violence or intimate partner abuse. Unfortunately, a history of domestic violence, even if there was never a conviction, can devastate a parent’s chances of getting custody of his or her child. When divorce proceedings are initiated, Family Court Services offers mediation services to try to resolve custody issues.

Defense Attorneys for Child Abuse Law

Family Court Services (FCS) will review both parents’ histories of alleged domestic abuse to protect the safety of a child. The FCS staff will perform an extensive background check to ensure the safety of any party or child in the proceedings and may include criminal background checks, checks for restraining orders issued against either parent, a review of any criminal charges and their subsequent resolutions, telephone interviews, and information from attorneys, shelters, hospital reports, Child Protective Services and/or any other sources deemed relevant to the investigation. If one’s partner can prove a history of violence in the home, the offender’s chances of getting custody could be defeated and visitation rights may not even be granted. The judge will allow visitation only if he or she believes that proper measures can be taken to ensure the safety of the child and of the partner.

If facing an intimate partner violence charge and/or a divorce, it is critical for a person who wishes to maintain custody of his or her children to contact the experienced domestic violence attorneys at the Kavinoky Law Firm to provide the best defense possible with respect to the criminal charge and to obtain referrals for exceptional family law attorneys. Click here for a free consultation.

An infliction of injury charge or case is primarily defined in the same way by both civil and criminal courts. Willful infliction of injury, more commonly called “spousal abuse,” is a California domestic violence crime (in criminal courts) or cause of action (in civil courts) that applies to intimate partners. In a criminal court, these partners may be married or divorced, living together or formerly living together, or have children in common. In a civil court, partners who are or were dating are also included. The laws of both courts apply to heterosexual couples and same-sex partnerships. With respect to both civil and criminal law, an individual is either guilty (in criminal court) or liable (in civil court) for this crime or cause of action if he or she willfully inflicts any injury, no matter how minor, upon the body of an intimate partner. This “charge” can be brought against an individual even if he or she barely touched the intimate partner.

In a criminal court, if a defendant is charged with infliction of injury, he or she faces a felony, punishable by up to four years in prison and a fine of up to $6,000. In a civil court, the person who is found liable for committing this wrong is subject to several different heavy fines but cannot be sentenced to jail or prison.

There are several differences between the procedures involved in civil and criminal courts with respect to infliction of injury. In a criminal domestic abuse case, it is the prosecutor who actually files the charge, not the victim, as many incorrectly believe. In a civil case, it is the alleged victim (who becomes known as the “plaintiff”) who sues the alleged abuser. Another difference is that it is much easier to find the defendant liable in a civil suit, as the judge or jury must only believe that there is a “greater than 50% chance” that the defendant caused the plaintiff’s injury. In a criminal action, the judge or jury must find the defendant guilty “beyond a reasonable doubt” in order to convict.

In a civil infliction of injury lawsuit, there are three types of monetary damages that may be awarded to the plaintiff. “General” damages are awarded to cover injuries for which an exact dollar amount cannot be calculated. “Pain and suffering” are the most common types of general damages. “Special” damages are awarded to cover the plaintiff’s out-of-pocket expenses. These may include any hospital bills, the cost to replace or repair damaged personal property and reasonable attorney’s fees. “Punitive” damages are awarded over and above special and general damages to punish a losing party’s willful or malicious misconduct.

In addition to monetary damages, a person found liable for infliction of injury may also have a Civil Protective Order issued against him or her. In general, a Civil Protective Order will prohibit the restrained individual from coming within a certain number of yards from the protected party in order to prevent further abuse, threats or harassment. However, depending on the circumstances, the order can be much more restrictive. Unless a specific end date is listed, the order will expire three years after being issued.

Clearly there are many consequences, both civil and criminal, that face a person accused of infliction of injury. Such being the case, it is imperative that an individual in this situation immediately contacts an attorney upon his or her being accused of this wrong. The criminal defense lawyers at The Kavinoky Law Firm are experienced at handling every type of California intimate partner abuse case and have successfully defended countless individuals from the devastating consequences that are associated with an infliction of injury conviction. In addition, they can provide referrals for civil defense attorneys when necessary. Contact them today for a free consultation.

Witness intimidation is a California domestic violence charge involving alleged threats to an intimate partner. Any type of couple can be considered an intimate partnership – the individuals can be straight or gay and may be married, divorced, living together, have children in common, or have dated at any time.

California domestic abuse law defines witness intimidation as any attempt to prevent an intimate partner from making a police report, answering the questions of law enforcement, or testifying in a court proceeding. The offense can be charged as a misdemeanor punishable by up to one year in jail. However, if the defendant is accused of using or threatening force, if the intimidation is part of a conspiracy, or if the intimidation is for financial gain, he or she will be charged with a felony punishable by two to four years in prison. The success or failure of the offender’s attempt is irrelevant to this charge, meaning that it doesn’t matter whether the intimate partner was actually intimidated.

When a suspect is arrested for intimidating a witness as a misdemeanor, bail is set according to the bail schedule but can be raised or lowered based on an application that can be submitted by the defendant, by anyone on behalf of the defendant or by the arresting officer. However, if the suspect is arrested on a felony witness intimidation charge, the law forbids the defendant from being released on bail in an amount that is either higher or lower than that contained in the bail schedule or on his or her own recognizance (commonly called OR) without first having a court hearing.

If there is a bail hearing, the judge will consider the defendant’s prior criminal history, his or her flight risk, and the facts of the pending case to determine whether to raise or lower the set bail amount or to release the defendant OR. When the judge makes decisions about bail, he or she presumes that the accused is guilty and makes a decision keeping that in mind, which is why it is so important to appear with a criminal defense lawyer who has experience with every phase of an intimate partner abuse case.

If the defendant is denied an OR release – which is very common in domestic abuse cases – and must post bail, release from jail can be obtained through one of two methods: Posting cash bail or posting a bail bond. To be released on cash bail, the defendant must post the full amount of bail in certified funds or cash with either the arresting agency or with the Clerk of the Court. If the accused attends every court appearance, the cash will be returned within 60-90 days after the case is resolved. However, if the defendant fails to appear, the cash bond is forfeited to the court.

A bail bond is a contract with a bail agent where the agent agrees to post a bond for the full bail amount. The bondsman will generally charge ten percent of the bond amount as his fee. The bondsman may also require collateral (usually a car, house or something else of considerable value) to secure the bond. This means that if the defendant does not repay the bond, the bondman has the legal right to keep or sell the defendant’s collateral. Once the case is over, the bond is exonerated, and the collateral is then released.

A witness intimidation conviction carries severe penalties. The defendant’s reputation, career, family and freedom are jeopardized the minute the arrest is made, which is why it’s critical to contact a skilled California defense attorney immediately after being arrested. In order to secure the best representation from a firm who has successfully defended countless individuals charged with domestic abuse crimes, contact the unparalleled attorneys at The Kavinoky Law Firm for a free consultation.

Civil Penalties and Sexual Battery

Sexual battery is a California domestic violence crime that applies to any intimate partners – either heterosexual or homosexual, married, divorced, living together, parents of children, or dating or formerly dating. Anyone who touches his or her intimate partner against that person’s will for the purpose of sexual arousal, sexual gratification or sexual abuse can be charged with misdemeanor sexual battery. Even slight touching, either directly, through the clothing of the accused, or through the clothing of the accuser can constitute sexual battery, even among partners in an ongoing relationship.

When charged as a misdemeanor with no aggravating circumstances, sexual battery carries a maximum of a six-month jail sentence and a $2,000 fine. However, if the accuser was unlawfully restrained, institutionalized, seriously disabled, medically incapacitated or unconscious, the jail sentence may increase to a maximum of one year or the crime may rise to a felony, punishable by a maximum of four years in the state prison and a $10,000 fine.

In civil court, an individual who is found “liable” for committing this “wrong” or “tort” can face heavy fines but cannot be sentenced to jail or prison. The penalty that can be imposed is the primary difference between a civil suit and a criminal case.

There are also differences between the procedures involved in civil and criminal courts with respect to sexual battery. In a criminal domestic abuse case, it is the prosecutor who actually files the charge, not the victim, as many incorrectly believe. In a civil case, it is the alleged victim, also known as the “plaintiff,” who sues the alleged abuser.

Another difference between criminal and civil cases is the burden of proof – it is much easier to find the defendant liable in a civil suit, as the judge or jury must only believe that there is a “greater than 50 percent chance” that the defendant sexually battered his or her intimate partner. In a criminal action, the judge or jury must find the defendant guilty “beyond a reasonable doubt” in order to convict.

In a civil lawsuit for sexual battery, there are three types of monetary damages that may be awarded to the plaintiff. “General” damages are awarded to cover injuries for which an exact dollar amount cannot be calculated. “Pain and suffering” are the most common types of general damages. “Special” damages are awarded to cover the plaintiff’s out-of-pocket expenses. These may include any hospital bills, the cost to replace or repair damaged personal property and reasonable attorney’s fees. “Punitive” damages are awarded over and above special and general damages to punish a losing party’s willful or malicious misconduct.

In addition to monetary damages, a person found liable for sexual battery may also have a civil protective order issued against him or her. In general, a civil protective order will prohibit the restrained individual from coming within a certain number of yards from the protected party in order to prevent further abuse, threats or harassment. However, depending on the circumstances, the order can be much more restrictive. Unless a specific end date is listed, the order will expire three years after being issued.

Clearly there are many consequences, both civil and criminal, that face a person accused of sexual battery. Such being the case, it is imperative that an individual in this situation immediately contacts an attorney upon a sexual battery accusation. The criminal defense lawyers at the Kavinoky Law Firm are experienced at handling every type of California intimate partner abuse case and have successfully defended countless individuals from the devastating consequences that are associated with a sexual battery conviction. In addition, they can provide referrals for civil defense attorneys when necessary. Contact them today for a free consultation.

The Definition of Sexual Battery

Sexual battery is an offense that can be charged against any intimate partner in a California domestic violence case. California law defines ‘intimate partners’ quite broadly – the couple can be heterosexual or homosexual and may be married, divorced, living together, have children in common, or be currently or formerly dating. Sexual battery is considered a “wobbler” offense, which means that it can be charged as a misdemeanor or a felony depending on the facts of the case.

Anyone who touches an intimate partner against that person’s will for purposes of sexual arousal, sexual gratification or sexual abuse can be charged with misdemeanor sexual battery. Any physical contact, however minor, can be considered touching in a sexual battery case. It doesn’t matter whether the touching is accomplished directly or through the clothing of the accused or the accuser. Sexual battery may be charged even against a partner involved in an ongoing, intimate relationship.

Misdemeanor sexual battery with no aggravating circumstances carries a maximum of six months in jail and a $2,000 fine. However, if the touching occurs while the accuser is unlawfully restrained, institutionalized, seriously disabled, medically incapacitated or unconscious, the jail sentence may increase to a maximum of one year or the crime may rise to a felony, punishable by a maximum of four years in the state prison and a $10,000 fine.

Every crime has specific elements or facts that the prosecutor must prove beyond a reasonable doubt in order to obtain a conviction against the defendant. Each element of the charge must be independently proved or else the jury must vote “not guilty.” In order to find the accused guilty of sexual battery, the prosecutor must prove three elements.

• The first element is that the accused touched an intimate part of his or her intimate partner. Note that this element doesn’t make any mention of injury. This is because a battery is simply any unwanted touching and has nothing to do with whether or not an injury was sustained by the offended party. The jury must only find that the defendant actually touched the accuser.
• The second element is that the touching was against the will of the person touched. As just mentioned, any unwanted touching is sufficient. This element will probably be the most difficult for the prosecution to prove because of the inherent sexual relationship that exists between intimate partners. In order for the prosecutor to prove this element, he or she must prove that the alleged victim made it clear that he or she did not want to be touched.
• The final element in this charge is that the accused touched the partner to specifically cause sexual arousal, gratification or abuse. This element’s proof will be likely based on the exact circumstances of the physical contact.

Sexual battery may be charged under a variety of circumstances. If the touching takes place while the alleged victim is unlawfully restrained by the accused or an accomplice, or if the alleged victim is institutionalized for medical treatment and is seriously disabled or medically incapacitated, then that fact (in addition to the three elements previously defined) must also be proved. In addition, it is a crime for an individual to cause a person who is in one of those situations to masturbate or touch another. If the touching takes place under those circumstances, then that fact must alternatively be proved in addition to the three previously defined elements.

In California, a sexual battery conviction is no joke. An accusation can be devastating, emotionally and financially, and a conviction carries severe penalties. To best avoid these consequences, it is imperative that an accused hires a skilled criminal defense lawyer who knows the most effective ways to refute this crime’s elements. In order to secure the best representation from a firm who has successfully defended countless intimate partner abuse cases, contact the experienced attorneys at the Kavinoky Law Firm for a free consultation.