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Domestic Violence Issues
Domestic Violence Restraining Order Flowchart
Timeline for Domestic Violence Restraining Order
- Submission of paperwork to Kings County Superior Court.
- Judicial Officer signs or returns rejected paperwork with explanation.
If Judicial Officer signs; you must have paperwork served on abuser by a non-involved party over the age of 18 or the Kings County Sheriff's Office (at no charge to the victim.)
Get proof of service from Sheriff's Office or person doing the service if service is completed on time (at least 10 days before hearing). If unable to serve, send in a Request for Reissuance, Form DV125) and try to locate and serve the party.
Submit proof of service to court.
At your hearing, request a permanent restraining order.
- If Judicial Officer rejects you can resubmit with corrections (Go back to step one)
If a Second Hearing is required,
- If children are involved the court may order an In-Court mediation, or set a Formal Mediation for a later date.
- If the Order is not granted, the hearing may be continued. The temporary orders may stay in effect.
- If the Order is granted, request a minute order from the Court Clerk.
- Again request that the restraining order be made permanent.
- If you attended a Formal Mediation and do not agree with the Mediator's recommendation, you may object at the hearing.
- Usually additional orders are required only if custody (see below) and visitation issues become complicated.
What is Child Custody?
When parents do not live together, custody means who is responsible for the children. When a parent has physical custody over a child, it means the child would spend time living with that parent on a regular basis. If the parents have joint physical custody the child lives at each parent's home. However, if one parent has sole physical custody, the child spends significantly less time at the other parent's house.
If a parent has sole legal custody of a child, it means that he or she has the right to make decisions regarding the child's health, education and welfare, such as what school or doctor shall be used. Joint legal custody means both parents share the decisions.
If parents agree on a custody plan, the Judicial Officer will usually approve it. If the parents cannot agree on a custody plan, they will have to speak with a mediator who will help them work out a plan. The Judicial Officer will decide any disputed issues that parents are unable to resolve during mediation.
Family Code 3044: (a) Upon 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 against 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.
What Is Mediation?
It is a process of dispute resolution. California law mandates Mediation in every case where custody or visitation is contested. The purpose of Mediation is to reduce the conflict and to develop an agreement assuring the children's close and continuing contact with both parents after the separation. The mediator is appointed by the court and must meet various educational qualifications prescribed by law.
recommendations to the court as to a temporary disposition pending a full trial. Mediation is not an adversary proceeding. When a decision must be made, the court will make the decision, not the mediator.
The reason for Mediation is to help parents share the rights and responsibilities in such a way that the best interests of the child will not be jeopardized. Mediation helps parents to focus on the needs of the children.
Domestic Violence and Immigration Status
If someone is a victim of domestic violence and his or her legal status in the United States is tied to the abuser, it is important to know:
- Some victims will not leave the abuser because they fear being deported. The threat of deportation is real, however the victim's safety is the primary issue.
- A victim of domestic violence is entitled to receive emergency medical care regardless of immigration status.
- A crime victim is not required to give his/her immigration status to the police.
- It is important to speak to a lawyer because many things can change the legal citizenship status of the abused victim. His/her situation could change through divorce or separation.
Violence Against Women Act
Under the Violence Against Women Act (VAWA), the spouses and children of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge, in order to seek safety and independence from the abuse.
- Must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse's death within the two year prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated within two years prior to filing because of abuse.
- Must have been battered in the U.S. unless the abusive spouse is an employee of the U.S. government or a member of the uniformed services of the U.S.
- Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.
- Is required to be a person of good moral character.
- Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.
How to Apply for VAWA Benefits
To self-petition, you must complete and file USCIS Form I-360 and include all supporting documentation. Self-petitions are filed with the Vermont Service Center and should be sent by certified return receipt mail (or any other method providing assurance of receipt). Sending the form to any other USCIS office will delay your application. You should keep a copy of everything you submit, including the application and all accompanying documents, in addition to proof of mailing.
Although self-petition provisions for victims of domestic violence are contained in the Violence Against Women Act, they apply equally to victims of either sex.
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