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Tuesday, November 27, 2012

Halle Berry and Gabriel Aubry and Restraining Orders

Los Angeles Divorce and Custody Lawyer Discusses Halle Berry Custody Case on CBS's The Insider

In case y'all missed it, I posted the link to my segment on The Insider tonight, which aired on CBS (channel 2 in LA), at 7:30 PST.

The reporters asked me a bunch of stuff, and like a good talking head, I obliged.  And as usual, a TON of stuff got cut on the editing table, so I am using my blog as an opportunity to educate my readers on some good ole' family law.

Ok.  So, in custody cases, it is not unusual to see parties filing restraining orders against each other.  Reason?  3044.

That's right.  Remember that number.

Family Code section 3044 (a) states, in relevant part,  "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."

What does that mean?

Well, basically, if you are in the middle of a custody battle, and there is a DVRO (domestic violence restraining order) issued against you, then the burden shifts to YOU to prove that having sole or joint custody is NOT detrimental to the child.

You see, the law is all about the burden.  Who carries the burden in court?   This is a VERY important question.  If YOU have the burden, then you have to PROVE by a certain standard (here, it is "preponderance of the evidence", NOT the more strict criminal "beyond a reasonable doubt") that it is NOT detrimental for you to have custody.

That's right, once there is a DVRO against you, there is a PRESUMPTION that you having custody is detrimental.  So you have to REBUT this presumption in order to gain custody.

In 2 words, this sucks.

In a custody case, you are already trying to prove best interests of the child in order to gain custody.  If you have a DVRO against you, you have to add "rebut presumption of detrimentality" to this laundry list of things to prove.  

So, in custody cases, it is not unusual to see parties who absolutely hate each other ABUSE Family Code section 3044, and file restraining orders left and right just to get a leg up on the custody battle.

Also, another thing that practitioners probably won't tell you, is that it is incredibly EASY to obtain a temporary restraining order, which lasts up to a max of 21 days before there is an EVIDENTIARY hearing to determine whether the TRO will dissolve, OR a permanent one to be issued for up to 3 years.

Anyway, to obtain a TRO, all you must do is submit a declaration alleging "recent incidents of domestic violence".  This could include ANYTHING.  It does NOT need to involve PHYSICAL abuse.  VERBAL abuse is enough.

I have successfully obtained TRO's based on a SINGLE email.

I won't go into any further details, as I don't want to bore you with legalese.  But my point is restraining orders are often abused in custody cases.

In the Halle Berry case, temporary restraining orders are being filed and granted left and right.  There are future hearings too, to set a more permanent one.

As a family law attorney, and a mother of two young children, I am just so incredibly sad for Nahla.  If only Halle and Gabriel can only understand how much this damages Nahla, and just come to an agreement to co-parent.  Nothing, absolutely NOTHING is worth destroying a young life.

There is a website called Postcards from Splitsville which contains drawings of kids of divorce.  It breaks my heart.

1 comment:

Toby Crane said...

A regular divorce hibbing is something I did not understand until very recently, and even now I struggling rapping my head around it.