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Milligan, Beswick, Levine & Knox, LLP - Attorneys at Law
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What constitutes domestic abuse in California?

James Knox: There are two different ways to answer that because there are two different areas of the code that talk about domestic violence. The criminal code, which is the penal code in California, has different sections that discuss domestic violence type cases.

The one that is the most frequently charged tends to be penal code section 273.5, which is corporal injury to a spouse or cohabitant. So it doesn’t necessarily have to be a married couple. It could be boyfriend and girlfriend living together. And in those instances, there has to be a specific injury to the alleged victim.

But there are other sections that also address what are known as domestic violence cases, which could be just a simple battery. Penal code section 243 discusses a battery between a spouse or, again, cohabitants where there is no specific injury shown.

And in either of those cases, California has changed their procedures in the last, I believe, last two to three years, probably due in part to previous instances where we had domestic cases in the media, where at the initial arraignment on these types of cases in a misdemeanor or felony case the judge in the case has to issue domestic violence protective orders for the alleged victim. And that wasn’t the case in the past. So every one of these cases on the criminal side, we do see these types of issues coming up, and automatically restraining orders being placed against our clients, even before all of the facts have come out.

Now the other side of the courthouse, if you will, is the family law court. That courthouse also addresses domestic violence cases, but in a civil setting. And sometimes this happens in conjunction with the criminal case. The alleged victim would be usually notified by the police officer to contact the family law court to request a domestic violence restraining order. Many of the courts now – in fact I think all of them in California – have a website that provide these forms free of charge online.

And if the alleged victim goes forward and then fills out that paperwork, submits it to the court, the court will, in the family law setting, also have a domestic violence restraining order issued potentially on an ex-party or what’s called an emergency basis, which allows the, again, the alleged victim, without even having any statement from the accused, having a restraining order placed upon them and then a hearing later to determine whether or not that restraining order should be permanent.

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