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Criminal DV Case Diversion While Pending Divorce Case
In our experience, it is not uncommon for a client to face a charge of domestic violence, i.e., a violation of Penal Code § 273.5(a) or 243(e)(1) (also called domestic battery), while also facing a divorce or dissolution case with separate support and child custody issues.
Sadly, the underlying domestic violence event may have been fabricated or greatly exaggerated by a wife coached by others that if her husband enters a no contest plea to domestic violence, she will “win” on child custody (with associated child support payments she can use for herself) and separate support so she can avoid working. The wife may also not be a U.S. citizen, so being a victim of domestic violence entitles her to preferential treatment in immigration court for becoming a U.S. citizen.
In criminal court, the facts may be such that the wife had no visible injuries, i.e., she claimed that our husband pushed her or hit her, but she suffered no bruises or cuts.
Although rare, the prosecutor may offer our client a form of diversion because he or she suspects the wife staged the incident or no incident at all took place, but the wife is seeking a windfall in divorce court from the effects of a conviction for her husband.
Diversion can be in the form of a delayed entry of judgment, or “post plea,” meaning the husband must enter a no-contest plea first, and then entry of judgment is delayed for a year, for example.
Diversion can also be in the form of a delayed entry of plea, or “pre-plea,” meaning the husband does not enter a no-contest plea and is permitted a year to attend 52 batterers’ classes, perform community service and abide by a protective / stay away order.
In evaluating which form of diversion has collateral effects in family law court for the client, one must be familiar with California Family Code §§ 3044(d)(1) and § 4320(2)(i)(1) – (5).
Family Code § 3044 (d) (1) is titled the Child Custody Presumption: For purposes of this section, a presumption against a party (i.e., the father) seeking custody if that party has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of a crime against the other party (i.e., the mother) that comes “within the definition of domestic violence contained in Family Code § 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 [domestic battery] of, or Section 261[rape], 262 [rape by force or fear], 273.5 [domestic violence], 422 [criminal threats], or 646.9 [stalking] of the Penal Code.”
Family Code § 4302(2)(i)(1) – (5), titled the Spousal Support Factor, states that a judge may consider, in setting spousal support, “[a]ll documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of: (1) A plea of nolo contendere; (2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party; (3) Any history of violence against the supporting party by the supported party; (4) Issuance of a protective order after a hearing pursuant to Section 6340; and (5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.
In other words, a spouse facing a charge of domestic violence of domestic battery should not accept diversion that requires a no-contest plea because while he or she avoids a conviction in criminal court, his or her spouse will enjoy a rebuttable presumption in favor of child custody and spousal support.
It is preferrable that the spouse facing criminal charges enter diversion without a no-contest plea, i.e., “pre-plea diversion.” This may be acceptable to the prosecution when the client owns real property locally (so he cannot move easily), has employment locally, has children enrolled in local schools and has other family members (i.e., elderly parents for whom he or she offers care) in the local area.
Sadly, the underlying domestic violence event may have been fabricated or greatly exaggerated by a wife coached by others that if her husband enters a no contest plea to domestic violence, she will “win” on child custody (with associated child support payments she can use for herself) and separate support so she can avoid working. The wife may also not be a U.S. citizen, so being a victim of domestic violence entitles her to preferential treatment in immigration court for becoming a U.S. citizen.
In criminal court, the facts may be such that the wife had no visible injuries, i.e., she claimed that our husband pushed her or hit her, but she suffered no bruises or cuts.
Although rare, the prosecutor may offer our client a form of diversion because he or she suspects the wife staged the incident or no incident at all took place, but the wife is seeking a windfall in divorce court from the effects of a conviction for her husband.
Diversion can be in the form of a delayed entry of judgment, or “post plea,” meaning the husband must enter a no-contest plea first, and then entry of judgment is delayed for a year, for example.
Diversion can also be in the form of a delayed entry of plea, or “pre-plea,” meaning the husband does not enter a no-contest plea and is permitted a year to attend 52 batterers’ classes, perform community service and abide by a protective / stay away order.
In evaluating which form of diversion has collateral effects in family law court for the client, one must be familiar with California Family Code §§ 3044(d)(1) and § 4320(2)(i)(1) – (5).
Family Code § 3044 (d) (1) is titled the Child Custody Presumption: For purposes of this section, a presumption against a party (i.e., the father) seeking custody if that party has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of a crime against the other party (i.e., the mother) that comes “within the definition of domestic violence contained in Family Code § 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 [domestic battery] of, or Section 261[rape], 262 [rape by force or fear], 273.5 [domestic violence], 422 [criminal threats], or 646.9 [stalking] of the Penal Code.”
Family Code § 4302(2)(i)(1) – (5), titled the Spousal Support Factor, states that a judge may consider, in setting spousal support, “[a]ll documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of: (1) A plea of nolo contendere; (2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party; (3) Any history of violence against the supporting party by the supported party; (4) Issuance of a protective order after a hearing pursuant to Section 6340; and (5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.
In other words, a spouse facing a charge of domestic violence of domestic battery should not accept diversion that requires a no-contest plea because while he or she avoids a conviction in criminal court, his or her spouse will enjoy a rebuttable presumption in favor of child custody and spousal support.
It is preferrable that the spouse facing criminal charges enter diversion without a no-contest plea, i.e., “pre-plea diversion.” This may be acceptable to the prosecution when the client owns real property locally (so he cannot move easily), has employment locally, has children enrolled in local schools and has other family members (i.e., elderly parents for whom he or she offers care) in the local area.
As states above, the presumption is “rebuttable” by the spouse offering evidence of having attended batterers classes, little or no injuries between the spouses, early acceptance of responsibility, taking parenting courses and abiding by the protective order, but the “sting” of the other spouse enjoying a presumption in favor of child custody and spousal support can be difficult to overcome.
