Domestic Violence and Family Law
Since its founding, Asian Americans Advancing Justice Southern California has served immigrant survivors of domestic violence, particularly those who are low-income, those who are limited English speaking, and everyone in need. We also aim to serve those with limited to no English speaking proficiency. Immigrant women and their children are vulnerable to abuse because of language issues, lack of financial resources, fear of authority and law enforcement, and unfamiliarity with the American legal system.
As one of the only providers of linguistically and culturally sensitive legal services for Southern California’s Asian American, Native Hawaiian, and Pacific Islander (NHPI) communities, Asian Americans Advancing Justice Southern California has aided thousands of immigrants over the years.
Asian Americans Advancing Justice Southern California’s bilingual staff focuses on providing legal assistance to domestic violence survivors with family law and immigration services. Family law matters include assistance with obtaining restraining orders, child custody and support orders, and divorce and paternity judgments.
Divorce in California
There are many myths surrounding the process of getting divorced. With half of all marriages ending in divorce, it is important to know the truth about the process, and to understand your rights during a divorce. A divorce legally ends your marriage. A divorce can also help you deal with many issues including: child custody, child visitation, child support, spousal support and dividing property and debts. To get divorced in California, you must follow some important, state-specific rules.
Who can get divorced in CA? You don’t need to have wed in California to get divorced in this state. You can get a divorce in California even if you were legally married in another state or another country.
Residency requirements: Even if you didn’t get married in California, you need to make sure that you meet certain “residency requirements” to get divorced in the state California has a “residency requirement” and so do different counties in California. For the California requirement, if you or your spouse has lived in California for at least six months, you can file for a divorce in California. Because some counties also have a “residency requirement” you need to make sure you also follow those requirements as well. For example, if you want to file a divorce in Los Angeles County, you or your spouse must have lived in Los Angeles County for three months before you can file.
Mutual consent is NOT required. Your spouse does not need to agree to the divorce. You can still get a divorce as long as you file the correct paperwork and follow the proper procedures.
You don’t need a special reason for getting divorced. You can get a divorce for the simple reason you and your spouse don’t get along. If this is the reason, there is an option on the divorce forms called, “irreconcilable differences” that means you and your spouse cannot work things out, and because of that the marriage cannot continue.
It will likely take longer than six months to finalize your divorce. You may have heard that it takes only six months to get divorced, but this is not true for everyone. The reason you have heard this is because the law says that the earliest date your divorce can be final is 6 months plus 1 day from the date of service. The date of service is the date your spouse legally received copies of the divorce papers you filed.
If your case is very simple and all of the paperwork is completed before six months and 1 day from the “date of service”, you have to wait until the six month and 1 day date to get a final divorce judgment. For most people, a divorce case will take longer than six months because people do not agree on all of the issues, and spouses are not able to file all of the necessary paperwork to finish a divorce quickly. For that reason, the “six month” rule only matters for people who can finish their divorce very quickly. For most people, their case will not finish until many months or years after this “six month” period.
Domestic Violence
Domestic violence is abuse that occurs between people who know each other. It can happen between husbands and wives, boyfriends and girlfriends, gay and lesbian partners, even between parents and children. Although statistics indicate that a majority of domestic violence victims are women, both men and women can be victims of abuse. Since it is such a serious and dangerous issue, it is important to understand what domestic violence is, and to know what resources are available to victims of domestic violence.
What is domestic violence? Domestic violence happens when one person, the “abuser”, uses fear and intimidation to control the other person. The fear can be from actual abuse or threats of abuse. Abuse can take many forms, including physical abuse; verbal abuse; emotional abuse/intimidation like property damage and control, threats, or stalking; isolation; financial abuse; neglect; sexual abuse; immigration threats; and threats to or regarding children.
If you are a victim of domestic violence, you must understand that you are not alone, and it is not your fault.
Protecting yourself and your children: Your first priority is the safety of yourself and your children. You can protect yourselves by calling the police if you are in immediate danger, finding a safe place to stay, getting counseling and legal assistance, and getting medical treatment if you are physically injured because of domestic violence.
Legal Options: Even if you are undocumented, you have many of the same family law rights. You can ask for a divorce, child custody, support, etc. There are also various immigration remedies for victims of domestic violence.
Restraining Orders: If you are in immediate danger you may need a restraining order—a legal paper that says your abuser cannot contact or come near you. You can get these even if you are undocumented. Sometimes the police can help you get an Emergency Protective Order (EPO), a criminal restraining order that is valid for a few days. There are also civil restraining orders: a Temporary Restraining Order (TRO), or a more permanent Restraining Order (RO). Keep in mind that you may have to face your abuser because he/she has the right to come to court and disagree with your request for a restraining order. You can also ask for temporary child custody, support and property protection orders in your civil restraining order case.
What happens to the abuser? If you call the police and your abuser is arrested, he/she may go to jail for a few days. Depending on how serious the abuser’s actions were, he/she may be ordered to attend counseling and batterer’s treatment program, or may be ordered to spend several months or years in prison. Your abuser may be deported if convicted of a serious domestic violence crime. If your immigration status depends on your abuser (for example, you are married to your abuser and he/she is a citizen or green card holder) consult an experienced immigration attorney right away.
Leaving the abusive relationship: If you have decided you want to leave your abusive relationship, and you have time to prepare, think about taking the following: Identification documents of you and the children, such as birth certificates, passports, green cards, social security cards, driver’s license; financial documents, including bank and credit card statements, apartment lease, house deed, work information, car registration; marriage certificate; medical and school records; proof of abuse (such as photographs of injuries, your journal or diary); and money and jewelry.
Supporting yourself after leaving your abuser: Many resources exist to help survivors of domestic violence. Domestic violence shelters provide free temporary housing, food, and social services to help you become more financially independent. United States citizens and certain immigrants can apply for benefits like welfare and food stamps. Even if you are undocumented you may be eligible for certain emergency medical or pregnancy care, and your U.S. born children may qualify for certain benefits. To support your children, the other parent of your children can be ordered to pay child support if you get a court order. You can do this through a divorce or legal separation case, a paternity case if you are not married to the other parent, or through a civil restraining order case.
Restraining Orders
A domestic violence restraining order can help protect you from violence or threats of violence by another person. If you are being threatened or hurt, it is important to understand what a restraining order is, and how it can help keep you safe. Understanding the basic steps toward getting a domestic violence restraining order can make the process seem less complicated, and help make your path to safety more clear.
What is a domestic violence restraining order? A domestic violence restraining order is a court order that can help keep you safe from violence. You can ask for a restraining order against someone who is physically hurting you, has tried to hurt you, or is threatening to hurt you. You can also ask for this order if that person has forced you to have sex by being violent towards you. There is no court fee for domestic violence restraining orders.
Who can I get a domestic violence restraining order against? You can ask for this type of order against someone you are related to or have a close relationship with, including a parent, child, brother, sister, grandparent, in-law, spouse, boyfriend or girlfriend, or just someone you dated. It does not matter whether you are still in a relationship with that person or not. If someone else is bothering you, such as a neighbor or a co-worker, you need to request a different kind of order, called a civil harassment order.
What can I ask for in a restraining order? You can ask that the person not contact or go near you, your children, or other relatives; not come near you; not own a gun; move out of your house; and follow child custody and visitation orders.
Filing for a domestic violence restraining order: You can file for this kind of order in any civil courthouse (a courthouse where they hear family law cases). Many courthouses have “self-help” centers that can help people without a lawyer file for a restraining order.
After filing for a domestic violence restraining order: If the Judge believes the reason you are asking for a restraining order, you will receive a “temporary” restraining order, and a next court date. The “temporary” restraining order will last until this date. At the next court date, you and the other person will have the chance to come to court and present evidence to the Judge. You should bring any kind of evidence you have to support your case: witnesses, photographs, medical reports, threatening letters, e-mails, or voicemails. You will ask the Judge to give you a “permanent” restraining order that will be valid for up to five years. At the same time, the other person has the chance to fight against the restraining order.
If the Judge doesn’t grant a “temporary” restraining order: The Judge may not give you the first “temporary” restraining order if he or she does not believe your situation. However, the Judge will still have to give you your next court date, which is your chance to bring more evidence and convince the Judge you need the restraining order to protect you.
What to do if the “restrained” person does not follow the order: You should call the police if the person does not follow the order. They can be arrested and charged with a crime.
