CA domestic abuse/family law code 4033

[shargurly]

What is the name of your state (only U.S. law)? Ca

I have a 7 month old. I was served custody papers from father and responded as Pro Per. There are a few questions I have in regards to CA law in family court.

There was domestic abuse from the father. First as emotional, then verbal, and then physical. In my declaration I provided evidence such as text messages and an image of a windshield he broke with his phone and fist, stating my daughter was a witness the first time he put his hands on me and saw him break the window (he didn't hit me), and described how things progressively become worse. Yes, I should have called authorities when it happened. Live and learn, and I might pay for it when I go to court. I now know there is family law code 3044.... but only after I filed my response with the court. I also attached a declaration that included a sheriff report from the day I moved out that states the father pulled off a door handle of my car. In fathers declaration, he claims that on the day I moved out I had filed false domestic violence charges against him. I told the sheriff of him putting his hands around my neck and pushing me into a door. They made a note of it in their report.

Realistically I do not want to keep the father away, but I want him to get the help that he needs and keep my young son emotionally and mentally protected from the fathers destructive tendencies. He needs help to control his anger towards others, and I did include that in the best interest of the child that father should attend parenting classes, alcohol substance abuse programs, and a batterer intervention program. I learned after being served that father has a misdemeanor from about 10 years ago for corporal injury to a spouse/cohabitant/so on. I already knew he had two felonies - 2nd strike over 5 years ago Both for criminal threats against his ex wife. I believed the bogus story he gave me. I know, again. Bad choice on my part to think somebody like him could change. He seemed like he had his life together and was on the right track. I was wrong.

SSOOOO:

What sort of evidence will a judge likely require to show proof of domestic abuse?

Would a judge make a decision on whether or not there is enough evidence to prove domestic violence before mediation? Do I have to request that the judge make a decision to see if family code 4033 applies before mediation or will they do it on their own?

I filed asking for joint custody and sole legal. During a consultation, a lawyer had told me that I wouldn't likely get sole custody but probably sole legal. I am in counseling for what I went through and ways on how to deal and cope with the father to prevent the consistent controlling behavior. The counselor at one time was a mediator and stated she doesn't think this will fly in court. Is there an option to refile an amended response petition? What CA court form would I need? Or could I just amend what i am asking for during the day of court? I would refile for sole physical and sole legal after reading family law code 4033.

 

[Ohiogal]

What is the name of your state (only U.S. law)? Ca

I have a 7 month old. I was served custody papers from father and responded as Pro Per. There are a few questions I have in regards to CA law in family court.

There was domestic abuse from the father. First as emotional, then verbal, and then physical. In my declaration I provided evidence such as text messages and an image of a windshield he broke with his phone and fist, stating my daughter was a witness the first time he put his hands on me and saw him break the window (he didn't hit me), and described how things progressively become worse. Yes, I should have called authorities when it happened. Live and learn, and I might pay for it when I go to court. I now know there is family law code 3044.... but only after I filed my response with the court. I also attached a declaration that included a sheriff report from the day I moved out that states the father pulled off a door handle of my car. In fathers declaration, he claims that on the day I moved out I had filed false domestic violence charges against him. I told the sheriff of him putting his hands around my neck and pushing me into a door. They made a note of it in their report.

Realistically I do not want to keep the father away, but I want him to get the help that he needs and keep my young son emotionally and mentally protected from the fathers destructive tendencies. He needs help to control his anger towards others, and I did include that in the best interest of the child that father should attend parenting classes, alcohol substance abuse programs, and a batterer intervention program. I learned after being served that father has a misdemeanor from about 10 years ago for corporal injury to a spouse/cohabitant/so on. I already knew he had two felonies - 2nd strike over 5 years ago Both for criminal threats against his ex wife. I believed the bogus story he gave me. I know, again. Bad choice on my part to think somebody like him could change. He seemed like he had his life together and was on the right track. I was wrong.

SSOOOO:

What sort of evidence will a judge likely require to show proof of domestic abuse?

Would a judge make a decision on whether or not there is enough evidence to prove domestic violence before mediation? Do I have to request that the judge make a decision to see if family code 4033 applies before mediation or will they do it on their own?

I filed asking for joint custody and sole legal. During a consultation, a lawyer had told me that I wouldn't likely get sole custody but probably sole legal. I am in counseling for what I went through and ways on how to deal and cope with the father to prevent the consistent controlling behavior. The counselor at one time was a mediator and stated she doesn't think this will fly in court. Is there an option to refile an amended response petition? What CA court form would I need? Or could I just amend what i am asking for during the day of court? I would refile for sole physical and sole legal after reading family law code 4033.

1) When did this alleged abuse take place?
2) Why do you want sole legal custody?
3) When did you start counseling as compared to when the motion was filed?
4) The police report is HEARSAY and not admissible.
5) Mediation can happen by caucusing.
6) You need to file PRIOR to the hearing in order to give proper notice. Why do you think you deserve sole custody?

 

[shargurly]

1) When did this alleged abuse take place?

I became pregnant and shortly after I moved me and my 9 year old daughter in with him. Gradually started out as emotional before Christmas and only became worse after I was put on Effexor at my 6 week post op appointment. The Effexor gave me a back bone to tell him his outbursts of anger and throwing things weren't right and especially not right when my daughter was around. I told him I didn't want her to hear us arguing but he said she needed to. Mid June is when he first put his hands on me. The last night of a family vacation he broke the car windshield and put his hands in my hair and shoved me into the car door all in front of my 9 year old. He also then locked me out of the car and started it up before I even had a chance to make it around to get my baby out. He had been drinking all day and I had driven us all back to the hotel. I ended up driving my car with kids in tow back home after midnight because I knew it would only get worse. The next morning he claimed he didn't know what happened but lied and told me cops were there to get him. I told him what he did and that he needed to sober up and next thing he tells me is his problem is an unappreciative old lady. I didn't instigate for any of this to happen. The fact that I had nothing to say that night, to try and prevent an outburst from him, is what set him off. I moved out mid July. After that it got worse to him calling me a lot of foul names any time I didn't do something or did do something or say something or didn't say something that was too his liking. If I had an opinion or I felt uncomfortable about something that he didn't agree with was met with quick anger and him throwing items and yelling. He wanted a stepford wife with no opinion but his own. He told me constantly that I needed to change, that I was crazy, and if I wasn't happy that I could leave and that he would be a weekend dad.


2) Why do you want sole legal custody?
I moved an hour away- where I lived before moving in with him. I went back to my old job. I have been primary care taker of my son since birth and communicating with father is not easy since he becomes quick to anger about any thing he does not see as going his way. He's told me I have no control and that I don't get to say when. I do not want to have to compromise with him since he does not know how to communicate or co parent effectively. It doesn't go anywhere when I've tried to compromise with him so far. I do not want to have to negotiate where my son will go to daycare or school since the father does not live close by, which Doctor he will see, and so on. Any compromise would lead into him trying to control the outcome into what he wants instead of what's best for our son.

3) When did you start counseling as compared to when the motion was filed?

I started counseling before I was served. I needed to figure out how to cope with him since he will be in my life forever.
4) The police report is HEARSAY and not admissible.

I'll keep my fingers crossed the judge will at least see and consider the ripping off of my door handle as anger issues. Father admitted he did it to sheriffs.
5) Mediation can happen by caucusing.

Mediation is required by CA. From what I was told while in the orientation is that we will see the judge and then go to mediation same day. If we do not agree then mediator will make a recommendation to judge same day.


6) You need to file PRIOR to the hearing in order to give proper notice. Why do you think you deserve sole custody?

I already filed my response and provided his lawyer with his copy of my response. Again I live an hour away. If I can get sole custody under family code 4033 then that would be in the best interest of our son. It's not that I want to keep him away. The judge could very well give him parenting time which I would be fine with and not contest. As of right now ive been letting him have him every other weekend. He just would not get to make any decisions that pertain to our son and he would just have to attend certain classes and prove he is a changed man in the best interest of our son. The father does not have a good track record so far with domestic partners, alcohol abuse, and on going anger issues. My son is still young and not able to voice an opinion. There's no knowing how he will be when our son finally shows a personality and it triggers something in the father.

 

[CourtClerk]

You're not going to get sole legal custody simply because you don't want to co-parent, which is exactly what you just said here....

 

[shargurly]

I have tried co parenting with him. I have compromised with him wanting additional time with our son on so many different occasions, but when I have asked for something/anything about our son I get the controlling and aggressive behavior from him. Any and all questions his way is met with him becoming angry, and of course I don't make it any easier because he wants me to submit and I won't do it. Not anymore. He is the one that has made it difficult to try and effectively co parent. So in essence it would be easier and in the better interest of my son that I have sole until his father learns how to civilly and effectively communicate with me. I get that I am vindictive for moving back to my hometown instead of finding a job where he lives or that I'm keeping our son away from him(and I'm not).This is why I have asked the court for him to take parenting classes, alcohol substance abuse class, and batterer intervention program. He might be a lost cause for help but my son needs it. I'm tired of the stress when I know I have to speak to him.

 

[Zigner]

I have tried co parenting with him. I have compromised with him wanting additional time with our son on so many different occasions, but when I have asked for something/anything about our son I get the controlling and aggressive behavior from him. Any and all questions his way is met with him becoming angry, and of course I don't make it any easier because he wants me to submit and I won't do it. Not anymore. He is the one that has made it difficult to try and effectively co parent. So in essence it would be easier and in the better interest of my son that I have sole until his father learns how to civilly and effectively communicate with me. I get that I am vindictive for moving back to my hometown instead of finding a job where he lives or that I'm keeping our son away from him(and I'm not).This is why I have asked the court for him to take parenting classes, alcohol substance abuse class, and batterer intervention program. He might be a lost cause for help but my son needs it. I'm tired of the stress when I know I have to speak to him.

Do you realize what this sounds like? Here's what is sounds like: "If dad won't do things exactly how *I* want them done, then screw it. He's gotta conform to my expectations if he wants any cooperation from me!" Really.

 

[Silverplum]

Do you realize what this sounds like? Here's what is sounds like: "If dad won't do things exactly how *I* want them done, then screw it. He's gotta conform to my expectations if he wants any cooperation from me!" Really.

It does, and we know that's not gonna fly in court.

 

[shargurly]

My cause for concern is his abusive nature. During our relationship and after. I've tried working with him in many ways to co parent and theres no effective communication skills on his part. Because he's never had to take care of a baby I've given him suggestions or even concerns and all he says to me is that I'm talking down to him. So don't bash me for a relationship that concerns me when it comes to my child. My concern is he will do the same thing to him as he becomes older and develops into his personality. I learned his father wasn't just abusive with me. So I'm looking out for the concern of my child. His father needs help and doesn't think he does. I effectively co parent with my 9 year olds father so I know it's not me.

So either answer my questions in my original post or don't provide your two cents... If the judge does acknowledge there was abuse in the relationship and how to approach the court under CA family law 3044?

 

[Silverplum]

My cause for concern is his abusive nature. During our relationship and after. I've tried working with him in many ways to co parent and theres no effective communication skills on his part. Because he's never had to take care of a baby I've given him suggestions or even concerns and all he says to me is that I'm talking down to him. So don't bash me for a relationship that concerns me when it comes to my child. My concern is he will do the same thing to him as he becomes older and develops into his personality. I learned his father wasn't just abusive with me. So I'm looking out for the concern of my child. His father needs help and doesn't think he does. I effectively co parent with my 9 year olds father so I know it's not me.

So either answer my questions in my original post or don't provide your two cents... If the judge does acknowledge there was abuse in the relationship and how to approach the court under CA family law 3044?

Alrighty .

 

[CTU]

I'd give you the two cents, but after some thought figured it's not a fair trade.

To me. Unless you tow my line and give it right back, anyway.

 

[shargurly]

This forum has not appeared to change from when I last used it. Thanks for the snarky opinions. Thanks for not even looking up the family code that I've been trying to get answers on. You have not seen his declaration or mine so you don't even know all the facts but you're basing an assumption on me trying to give you as much back story as possible and yet you can't be bothered to answer any questions on a forum that is meant for that. I've laid out my declaration as him being abusive partner towards me and in front of my 9 year old, along with a long list of criminal offense that were dui's, felony criminal threats, vandalism, and misdemeanor corporal injury. All criminal charges relating to his ex wife and other individuals. It's my fault for not finding this stuff out until after I left but I do not want my son to suffer for it.

I just want answers so I can be prepared. But apparently none of you are familiar with CA. So here:

Family Code Section 3044

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.
In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the non custodial parent, as set forth in paragraph (1) of subdivision (a0 of Section 3040, may not be used to rebut the presumption, in whole or in part.
Whether the perpetrator has successfully completed a batter’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child or the child’s siblings.
For purposes of this section, the requirement of a finding by the court shall be been convicted within the previous five years, after a trial or plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273. 5, 422, or 646.9 of, the Penal Code.
The requirement of a finding by the court shall also be satisfied of any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous 5 years.
When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions, reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant admissible evidence submitted by the parties.
In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.

 

[Silverplum]

This forum has not appeared to change from when I last used it. Thanks for the snarky opinions. Thanks for not even looking up the family code that I've been trying to get answers on. You have not seen his declaration or mine so you don't even know all the facts but you're basing an assumption on me trying to give you as much back story as possible and yet you can't be bothered to answer any questions on a forum that is meant for that. I've laid out my declaration as him being abusive partner towards me and in front of my 9 year old, along with a long list of criminal offense that were dui's, felony criminal threats, vandalism, and misdemeanor corporal injury. All criminal charges relating to his ex wife and other individuals. It's my fault for not finding this stuff out until after I left but I do not want my son to suffer for it.

I just want answers so I can be prepared. But apparently none of you are familiar with CA. So here:

Family Code Section 3044

We don't have to look stuff up for you. And you assume incorrectly about the breadth of our "familiarity" with family law in any state (except one).

Attitude counts.

 

[shargurly]

Yes attitude counts. So get off your high horse and help by answering the questions I posed in my first post or get a different past time.

Honestly this forum is a joke and only meant as a power trip for the likes of people like you. I hope your ego feels huge!

 

[Silverplum]

Yes attitude counts. So get off your high horse and help by answering the questions I posed in my first post or get a different past time.

Honestly this forum is a joke and only meant as a power trip for the likes of people like you. I hope your ego feels huge!

Actually, the answer is in the law you just posted.

You have a nice evening.

 

[stealth2]

Yes attitude counts. So get off your high horse and help by answering the questions I posed in my first post or get a different past time.

Honestly this forum is a joke and only meant as a power trip for the likes of people like you. I hope your ego feels huge!

Door's over thattaway, sweetheart.