Domestic violence takes center stage in recent statutory changes

Recently, when interviewing someone working at Next Door Solutions, a San Jose nonprofit organization that assists victims of domestic violence, I was told that domestic violence is on the upswing. This information, from someone who is working on the front lines in addressing domestic violence, has been reinforced by reports in the media that domestic violence has increased since the pandemic forced us to shelter in place. Perhaps the upswing in domestic violence explains why domestic violence took center stage in 2019 and 2020 in the context of statutory changes in family law. As a result of these statutory changes, more penalties may be imposed against perpetrators of domestic violence.

Prior to the 2019 amendments, Family Code Section 4320(i) required judges to consider documented evidence of a history of domestic violence when making a spousal support order. The amendment to this subsection has been expanded to require judges to consider "no contest" orders made in criminal domestic violence cases when making spousal support orders involving allegations of domestic violence. Furthermore, judges must consider permanent restraining orders issued in domestic violence cases when deciding whether to award spousal support. The rules apply to temporary and long-term spousal support.

Family Code Section 4325 is another statute addressing spousal support and domestic violence amended in 2019. The amendment clarifies the type of domestic violence evidence to be considered in determining whether to order spousal support.

In re Marriage of Brewster and Clevenger, 2020 DJDAR 1358 (Cal. App. 6th Dist., Feb. 19, 2020), indicates that documentary evidence of domestic violence needs to be presented, not just testimony. Such evidence may be police reports, pictures of injuries, voicemails, 911 call transcripts, medical records, employment records, court records, emails and text messages.

Even before these amendments to Family Code Section 4325 took effect, Family Code Section 4325 was a powerful tool for combating domestic violence. In re Marriage of Cauley, 138 Cal. App. 4th 1100 (2006), which I call "the herbicide case," illustrates the impact Family Code Section 4325 can have. In that case, the wife lost her right to receive $5,250 per month in spousal support from her former husband after she sprayed him and his girlfriend with herbicide, ripped out his garden, killed his fish, and made more than a thousand calls to him, many of which were abusive in nature. Wife's defense that the spousal support order was supposed to be non-modifiable, was unavailing.

Family Code Section 4325 adds another penalty for commission of domestic violence if forfeiture of spousal support rights is not enough to discourage abusive behavior. It authorizes trial courts to award 100% of the community interest in a victim's pension to the injured spouse.

For the revised Family Code Section 4325 to apply there must be a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding.

Family Code Section 3100 also was amended. It has been expanded to provide for more limitations on child visitation when domestic violence has occurred. The amendment to Family Code Section 3100 may further limit visitation orders when a temporary domestic violence order has issued, before a final determination on the application for a "permanent" domestic violence order has occurred. The changes are consistent with Family Code Section 3011, which is the "best interests of the children" statute, and Family Code Section 3044, which is the statute creating a presumption that a perpetrator of domestic violence should not be awarded joint legal or joint physical custody. The amendments to the latter code section allow the presumption to also be applied against persons in other specified situations. It also requires the court to make certain findings before ruling in favor of a party seeking to overcome the presumption.

The statutory changes governing domestic violence in the family law context may make it more likely that litigation will be pursued by those accused of domestic violence in order to avoid application of the more severe penalties now in place. For this reason, it appears the amendments to the statutes and the recent Brewster and Clevenger case emphasize the need to produce documentary evidence supporting any testimony to establish a domestic violence case. 