Recently in Domestic Violence Category

July 25, 2013

Husband Accused of Fatally Beating Wife After She Asked for Divorce - to Stand Trial

975584_broken_heart.jpgIn a San Diego courtroom, a judge recently ordered an Iraqi-American man to stand trial for killing his wife after she allegedly asked for a divorce. According to an article in the U-T San Diego news, the 32-year-old victim was fatally beaten in her California home. When the incident first happened, authorities believed that the murder was a hate crime because they discovered a note in the home that read: "Go back to your country, you terrorist." Naturally, the hateful message drew international attention and condemnation. But as the investigation continued, evidence revealed that her 49-year-old husband was unable to accept that his wife wanted a divorce and had allegedly reacted in a violent manner. Authorities ultimately arrested the man and charged him with a domestic violence murder.

At the pretrial hearing, the couple's 18-year-old daughter testified that she had gone with her mother to the courthouse to obtain divorce papers. She further mentioned that her parent's long-standing problems had deteriorated in 2012, and when her mother told her father that she wanted a divorce, he laughed. According to a recent news article, a judge in El Cajon ordered the husband to stand trial for the murder of his wife.

Domestic violence is a serious matter. In legal terms, it is the unlawful infliction of injury on the person of another. The victim may be a current or former spouse, a partner or a child. California domestic violence laws prohibit the use of physical force or threats to traumatize household members. Some of the common crimes of domestic violence include 1) corporal injury to a spouse or cohabitant; 2) domestic battery on an intimate partner, 3) child abuse and endangerment, and 4) stalking and criminal threats.

Under the law, acts of domestic violence include, 1) hitting or striking another person; 2) exerting force or violence, 3) cruel or inhuman punishment, 4) physical, emotional, or sexual abuse, 5) conveying criminal threats of harm, and 6) neglect or endangerment of another's health or safety. In some cases, the risk of domestic violence increases when a woman tells her spouse that she wants a divorce.

A person contemplating divorce may resist initiating the process for fear that once the spouse is informed of the decision, he could exhibit violent behavior. But there are ways to seek protection in advance. In California, family courts can grant spouses a temporary restraining order to prevent the perpetrator from approaching the home for a certain period of time. A permanent restraining order would require that the perpetrator remain at least 100 yards away from the home for up to five years and prohibits any contact whatsoever with the victim. There is a certain amount of proof or evidence one would need to provide in order to receive the order of protection.

In the case discussed above, it does not appear that the wife/mother sought any protection from the San Diego court system. If a person is considering divorce and has any concerns about a potentially dangerous situation involving another, it is important to get help as soon as possible. A local family law attorney could help to protect your safety and your rights.

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May 16, 2013

California's Highest Court Rules That Father's Sexual Abuse of Daughter Supports Finding That Sons Are Also Juvenile Dependents

1215912_paper_chain_in_the_dark.jpgIn San Diego, the juvenile court handles, among other issues, juvenile dependency cases. Juvenile dependency cases involve situations where there may be abuse or neglect in the home. It is the juvenile court's job to protect the children in the family. Domestic abuse aimed at children is reprehensible for many reasons, most notably because the relationship between parent and child is innately based on trust. Parents who are struggling with issues in juvenile court should consult with an experienced family law attorney who understands the local laws applicable to your case.

In a recent California Supreme Court case, In re I.J. et al., the father had custody of his five children: three boys and two girls. The Los Angeles County Department of Children and Family Services filed a petition with the juvenile court alleging that the father sexually abused one of the daughters for a period of three years. The court determined that all five children - daughters and sons -- were dependents of the juvenile court under Section 300 of California's Welfare and Institutions Code. The kids were removed from the father's home. He appealed.

While the court of appeals unanimously agreed with the juvenile court's determination that the daughters were dependents of the court, it was divided on the issue of whether the sons should also be taken away from the father's care without additional evidence. The Supreme Court granted the father's petition for review of whether the sexual abuse of one daughter supports the decision to declare the sons to be dependents of the court.

Under Section 300 of the Welfare and Institutions Code, the juvenile court is given the authority to determine when a child is to be a dependent of the court. There are many factors the court can consider, such as whether the child has suffered, or is at substantial risk of suffering serious physical harm or illness; the child has been sexually abused or there is a substantial risk that the child will be so; and whether the child's sibling has been abused or neglected and there is a substantial risk that the child will be also.

The court pointed out that there does not have to be evidence that the sibling actually be abused or neglected before the court can assume jurisdiction over the child, just that there is a substantial risk. The court thoroughly reviewed decisions within the state's appellate courts and found conflicting decisions on the matter.

The Supreme Court ultimately agreed with the decision below, holding that there was sufficient evidence to support the juvenile court's dependency ruling. In so holding, the court reiterated the lower court's characterization of the father's behavior as "aberrant in the extreme." Such behavior indicates that the parent "abandons and contravenes the parental role" - which, the court said, justifies an interruption of parental custody.

Domestic violence is the unlawful infliction of injury on another person. The victim may be a child, as in this case, a former spouse, or partner. Domestic violence cases are serious and require prompt and proper attention. Contacting a local attorney to advise you on the applicable laws and legal requirements is essential.

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May 9, 2013

California Court Ordered Mom to Pay Spousal Support to Man Who Allegedly Raped Her Daughter for Years

875412_balance.jpgIn San Diego and throughout California, the court may order one spouse to pay the other a certain amount of money each month when a couple divorces. This is called "spousal support" - or as many people know it, "alimony." In determining the amount, courts will look at a variety of intricate factors, including the length of the marriage, the standard of living throughout, the ability of each spouse to have a job, the potential impact on any children, age and health of the spouses, and their debts and property, just to name a few. There are countless considerations that only an experienced, local San Diego Family law attorney can help sort through to create the best possible spousal support plan.

Sometimes, the award of spousal support may not seem fair. According to Fox News accounts, when California mother Carol Abar married Ed Abar, her daughter was just nine-years-old. Shortly thereafter, Ed Abar began raping the child, who did not tell her mother for fear of his threats. Sixteen years later, when her daughter finally told Carol about the assaults, she promptly divorced him. During the divorce proceedings, a judge ordered Carol to pay her ex-husband $1,300 in alimony each month, despite her allegations of abuse toward her daughter. In rendering the support award, the judge allegedly told Carol that she had no proof of her husband's criminal conduct.

Carol has been paying alimony until last year, when further reports indicate that Ed Abar pleaded guilty to one of four rape charges and was sentenced to over a year in jail. At this point, a judge temporarily halted the spousal support payments, which had accrued to approximately $22,000 over the years. After serving the required sentence, Ed Abar was released and is now actually seeking an order from the court - to reinstate his alimony payments.

Keeping in mind that Abar was convicted of raping Carol's daughter, he nevertheless, asked the court for a resumption in support payments as well as $33,000 in past due support. There seems to be somewhat of a "loophole" in California law as it concerns domestic violence. For instance, in making determinations regarding the award of spousal support, courts will take into account, documented evidence of any history of domestic violence between the spouses. There is a "rebuttable presumption" against giving spousal support to an abusive spouse who has a criminal conviction for domestic violence against the other spouse.

Up until last year, California state law required a victim of spousal abuse to pay support to her attacker after a divorce. Governor Jerry Brown signed Assembly Bill 1522 to close that loophole, but there still happens to be no specific provision preventing child abusers from receiving spousal support.

It will be interesting to see whether the court orders a resumption of support payments. The way the law in California stands now, the court is not required to consider Ed Abar's repeated child abuse. Spousal support issues can be extremely complicated to sort through and, more often than not, require a full and comprehensive understanding of the local laws and procedures.

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March 28, 2013

California Law Requires The Surrender of Firearms for Virtually All Domestic Violence Court Orders

997480_sign.jpgFortunately for San Diego residents, California has one of the strictest laws on gun rights with respect to orders of protection. This is welcoming news to people, mostly women, who have been the victims of domestic violence. According to a New York Times article, some states do not require gun owners to relinquish their firearms, despite the issuance of an order of protection. Advocates cite constitutionally protected rights to bear arms, even in the face of a domestic violence court order. If you are involved in a domestic violence situation, it is imperative that you contact a local, experienced family law attorney to help you protect your safety and your rights.

California domestic violence laws prohibit the use of physical force or threats to traumatize household members. The laws also take into account that victims of domestic violence can include anyone with whom the alleged perpetrator shares a relationship. This may include dates, fiancées, roommates, children, current and former spouses, and biological parents of a child. Statistics show that, more often than not, when a woman dies in a domestic violence encounter, it is by the use of a gun. Advocates for victim's rights argue that the need to protect a woman's life should trump the right to bear arms.

Pursuant to California law, judges are mandated to order the surrender of firearms in virtually every domestic violence order. There is evidence that laws of this kind are making an impact: according to a 2010 study, there has been a 19 percent reduction in intimate partner homicides. In California, anyone who is served with a temporary restraining order has just 24 hours to hand over any weapons to law enforcement or they may sell the items to a licensed gun dealer.

Although these efforts are commendable, enforcement still remains an issue. In response to these concerns, the state set up a pilot program in 2006 to increase enforcement in San Mateo and Butte Counties. In 2010, when the state experienced fiscal problems, the program's funding was taken away. But San Mateo pursued other means of financing because, as far as they were concerned, their program was saving lives.

According to the head of the major crimes unit in San Mateo County, they have not had a firearm-related domestic violence homicide in the past three years. Just last year alone, they received 324 firearms by virtue of surrender or seizure from 81 people out of more than 800 protective orders. Under the program, each day a detective reviews a handful of protective orders and will follow up on the ones that make some reference to guns by going out and serving restraining orders and attempting to collect the firearms at that moment.

Threats and the use of firearms are not the only forms of domestic violence. Other examples of the infliction of a "corporal injury" on another may be accomplished through striking or hitting, exerting force or violence, cruel or inhumane punishment, physical, emotional, or sexual abuse, communicating criminal threats of harm, and neglect or endangerment of health or safety.

Anyone who is the victim of domestic violence should contact the appropriate authorities and seek the assistance of an experienced attorney to help you protect your safety and your rights.

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February 28, 2013

U.S. Congress Passes Renewal, Expansion of Violence Against Women Act

OneBillionRising.FarragutSquare.WDC._14February2013-oldwomen.jpgThe U.S. House of Representatives passed the Violence Against Women Act (VAWA) on February 28, 2013, ending months of wrangling over various expanded terms included in the reauthorization of the law passed by the Senate. First enacted in 1994, VAWA provides federal funding to support investigation and prosecution of violent crimes against women, including domestic violence, and by allowing civil claims by victims of violent crimes. The reauthorized version, which will now go to the president for his signature, includes expanded protections for Native American, immigrant, and LGBT populations.

Domestic violence is a tragic and unnecessary occurrence in divorce. A simple search on the web of words like "divorce" will quickly lead to news stories of domestic violence incidents, some fatal. While domestic violence can affect anyone, the common perception is of men or husbands as the perpetrators. We condemn all domestic violence, and we support efforts at prevention and support of victims.

Then-Senator Joseph Biden drafted the original VAWA bill. It passed both houses of Congress with bipartisan support, and was signed into law by President Clinton on September 13, 1994. Congress has reauthorized it twice before this year, in 2000 and 2005. The White House claimed earlier this year that domestic violence rates decreased by sixty-seven percent between 1993 and 2010, and that more victims are willing to report assaults. VAWA created the Office on Violence Against Women (OVW) in the Department of Justice, which assists communities in creating policies and programs to combat "domestic violence, dating violence, sexual assault, and stalking." It also administers grant programs that support local governments, nonprofit and community organizations, and schools that are developing programs to assist victims and improve law enforcement.

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January 10, 2013

Modification of Spousal and Child Support Orders During Pending Divorce Litigation Reviewed by California Appellate Court

file0001373070796.jpgA husband appealed pendente lite orders terminating spousal support and declining to modify child support in a divorce matter. In re Marriage of Freitas, No. D060281, slip op. (Cal. App. 4th, Oct. 3, 2012). The trial court entered orders awarding child support to the wife and spousal support to the husband. It later declined to modify the child support order, holding that a recent precedent decision prohibited it from doing so, but it terminated the wife's child support obligation, citing the husband's prior conviction for domestic violence. On appeal, the husband argued that both decisions constituted error. The appellate court affirmed the spousal support order and remanded the child support order.

Christine and Kevin Freitas separated in March 2010 after more than eighteen years of marriage. The couple have two children, who were thirteen and nine at the time of the separation. The wife filed for divorce in April 2010. The husband filed an order to show cause (OSC) that August requesting spousal support and child support. The wife opposed a spousal support order, informing the court that the husband had an October 2006 conviction for battery against her, and that in July 2010, the court entered a domestic violence restraining order against the husband. After a hearing on the OSC in October 2010, the court awarded the husband $800 per month in spousal support while the divorce was pending, and awarded the wife $7 per month in child support. The court reserved jurisdiction to modify the support awards for September and October, giving the husband until January 4, 2011 to present additional evidence of her income.

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November 29, 2012

Parent's Drug Use, Tardiness to School are Insufficient to Show Risk of Imminent Harm to a Child in a Dependency Proceeding

933457_17536502.jpgA mother appealed a juvenile court's declaration of dependency over her eleven year-old daughter in In re Destiny S. The court had taken her daughter from her custody and placed her with a family member. It entered an order finding that the daughter was at risk of physical harm, citing the daughter's school tardiness during the previous year and the mother's history of drug use. The appellate court reversed the trial court's ruling, finding that the evidence did not support any risk of "serious physical harm."

The Department of Children and Family Services (DCFS) received a report in September 2011 that an unknown individual was sexually abusing eleven year-old Destiny S. After an investigation, DFCS determined that the allegation was "unfounded." Destiny's mother, Rosemarie H., admitted to DFCS investigators that she smoked marijuana every week, and that she had previously used methamphetamine. DFCS petitioned the court to declare Destiny a dependent because of Rosemarie's drug use. It cited § 300(b) of the California Welfare and Institutions Code, which gives the juvenile court jurisdiction over a child when the court finds "substantial risk" of "physical harm or illness" because a parent is unwilling or unable to provide proper supervision. The court placed Destiny in the custody of her maternal grandmother when her mother tested positive for methamphetamine use.

Evidence presented at a hearing in January 2012, which was not contradicted, showed that Destiny was a "healthy, happy preteen," that she had a good relationship with her mother, and that her mother took good care of her. Destiny stated that she wanted to live with her mother. The principal of Destiny's school said that she attended school and had no discipline problems, and that the tardiness problems of the previous year had not continued. The mother had three months of negative drug tests. The juvenile court nevertheless concluded that Destiny faced the risk of substantial physical harm in her mother's custody, based on her history of school tardiness and her mother's drug use.

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November 8, 2012

Domestic Violence and Divorce Cases in San Diego

867286_90362044.jpgSan Diego County has one of the highest rates of domestic violence in California, based on calls to law enforcement. It also has a wealth of resources available to victims of domestic violence and people who fear they may become victims. California's family laws provide some resources and remedies in cases where domestic violence is a factor, including protective orders, but these are generally only available through the courts. Everyone should be aware of resources like hotlines, shelters, and law enforcement programs that may be able to help in an emergency.

"Domestic violence" is generally defined as force, or the threat of imminent force, against an adult member of a person's household. This could include a spouse or former spouse, a dating partner, the other parent of a person's child, or some other adult relative by blood or marriage. The gender of neither an alleged assailant nor an alleged victim is relevant to the legal definition of domestic violence.

A review of five years of data, ending with 2010, on calls made to law enforcement throughout California revealed that, out of the ten largest counties in the state, San Diego County had the second highest volume of domestic violence calls in four of the five years. Only Fresno County had a higher rate. A spokesperson for the District Attorney's Office suggested, in a report by the San Diego Union-Tribune, that programs supporting domestic violence victims might result in a higher volume of calls, encouraging reporting of incidents by people who might not otherwise feel safe to do so.

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October 18, 2012

California Supreme Court Affirms Adjudication of Dependency of Two Children Due to Sibling's Death in a Car Accident: Los Angeles Co. Dep't of Children and Family Svcs. v. William C

939161_49088660.jpgThe California Supreme Court affirmed an adjudication of dependency for two children in Los Angeles Co. Dep't of Children and Family Svcs. v. William C. A father had appealed the adjudication of dependency of his two surviving children based on a section of the dependency statute, California Welfare and Institutions Code § 300(f), that allows a dependency adjudication when a parent is found to be responsible, through abuse or neglect, of the death of another child. The Supreme Court held that the statute did not require a finding of criminal negligence, nor did it require proof of a present risk to the surviving children.

According to the court's opinion, William C. and Kimberly G. were the parents of three children: Ethan, Valerie, and Jesus. The parents separated in the spring of 2009, and the children lived with William in William's mother's home. On June 17, 2009, William noticed that Valerie's arm was injured, apparently due to falling off of a bed. He intended to take her to the hospital, but did not have a child safety seat in the car he was driving. Instead, Valerie, who was about two years old, sat in William's sister's lap while William drove. A car collided with William's car, and Valerie sustained fatal injuries. Although William was reportedly not at fault in the accident itself, he faced criminal charges for child endangerment. He reportedly admitted to transporting a young child without a safety seat and paid a $100 fine.

The Los Angeles County Department of Children and Family Services (the "Department") responded to a report of the neglect of Ethan and Jesus about a week later. The Department claimed the children "were dirty and seemed unsupervised." Opinion of the Court at 5. The Department said that it also learned that Kimberly had a history of mental health problems and cognitive impairments, and had an alleged pattern of domestic violence against William. Kimberly's family, meanwhile, alleged that William's family severely neglected the children.

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September 27, 2012

Reunification with Children Denied for California Father Because of Abuse Allegations

1401191_72228763.jpgA San Diego father appealed a superior court ruling in a juvenile dependency case that denied him reunification with his two sons. The Fourth District Court of Appeals reviewed In re A.G., et al and affirmed the superior court's ruling. It held that California law required the superior court, given the circumstances of the case, to deny services to the father, and that the father failed to meet his burden of proof that reunification would be in his sons' best interests.

The appellant, Hugo G., is the presumed father of four children, two sons and two daughters. The San Diego County Health and Human Services Agency (HHS) filed dependency petitions for all four children in October 2011. At that time, the two sons were eight and three years old, and the daughters were eleven years and nine months old, respectively. The dependency petition alleged that Hugo sexually abused the older daughter, A.G., in January 2010. HHS asserted jurisdiction over the other three children on the grounds that a sibling had been abused.

An amended petition, filed by HHS in November 2011, alleged that Hugo physically abused A.G. and the two sons beginning in September 2010. The court denied Hugo's request for reunification services, including a child abuse class, but ordered them for the children's mother. Hugo appealed the superior court's denial of reunification services only as to the two sons.

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July 5, 2012

Court Upholds Termination of California Man's Parental Rights

South_dakota_fence.jpgThe Supreme Court of South Dakota recently upheld a lower court's ruling terminating the parental rights of a California man, identified as M.A.S., finding that the state's efforts to reunite the child with the father were not successful and that termination is in the child's best interest. The case involved a complicated intersection of state and federal legal systems.

South Dakota's Department of Social Services (SDDSS) removed the child from the mother's home, while the father lived in California. The Golden State's Department of Social Services (CDSS) reportedly monitored the father's progress on court-ordered services. The federal Indian Child Welfare Act (ICWA) also played a role in the case because both the mother and the child are members of Montana's Fort Peck Sioux Tribe.

According to the court's ruling, SDDSS took the child, identified as P.S.E., into custody in June 2009, shortly after her first birthday. The mother identified M.A.S., who lived in California, as the father. He said that he did not know he had a child until SDDSS contacted him. The mother admitted to neglect of the child at an adjudicatory hearing, and her rights were later terminated with no appeal.

The trial court found that M.A.S. had not provided P.S.E. with "care and support", but through no fault of his own. SDDSS told the court at M.A.S.'s adjudicatory hearing that its goal was to eventually place the child with the father.

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May 10, 2012

Actress Will Not Face Charges for Alleged Domestic Violence

Prosecutors in Los Angeles decided recently not to file charges against actress Lisa Robin Kelly over an alleged incident of domestic violence in April. Kelly was arrested after her roommate, John Michas, accused her of assaulting him. The media alternately describes Michas as her roommate and her boyfriend. Kelly is best known from the television series "That '70s Show" as the main character's older sister, Laurie Forman. Her case spotlights the difficulties in both alleging and defending against allegations of domestic violence.

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Police arrested Kelly shortly after midnight on Saturday, March 31, 2012, after Michas told police that she had assaulted him. The arrest was reportedly based on suspicion of corporal injury to a spouse, a felony offense under California law. Kelly went free on $50,000 bond.

California defines "corporal injury to a spouse" as willfully inflicting "corporal injury resulting in a traumatic condition" on a spouse or "cohabitant," a former spouse or cohabitant, or the parent of the accused's child. Cohabitation does not require marriage or the appearance of marriage in order to qualify under the statute. Punishment can include two to four years in state prison or one year in county jail, as well as a fine of up to $6,000.

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March 22, 2012

California Bill Would Prevent Convicted Abusers from Receiving Spousal Maintenance

528902_48194552_03262012.jpgA bill pending in the California Legislature intends to close a loophole that sometimes causes abused spouses to owe maintenance payments to their abusers. Under the bill, people convicted of certain criminal offenses committed against a spouse would be precluded from obtaining benefits, such as spousal maintenance or attorney's fees, from the abused spouse in a divorce case. The law would also amend the California Family Code to award one hundred percent of the community estate to a spouse who is the victim of a "violent sexual felony" committed by the other spouse. The Family Code currently awards one hundred percent of the community estate to one spouse when the other spouse is convicted of either the attempted murder or solicitation of the murder of that spouse.

The bill, filed in the state Assembly as AB 1522, passed the Judiciary Committee on a 7-1 vote on March 20. The bill was introduced by Assemblywoman Toni Atkins, D-San Diego, and it has the support of the San Diego District Attorney, the California District Attorneys' Association, and the San Diego Board of Supervisors.

A San Diego case, previously reported in this San Diego Divorce Attorney Blog, inspired the bill. Crystal Harris, a San Diego financial analyst, was ordered by the judge in her divorce case to pay $3,000 per month to her ex-husband in spousal maintenance. This was despite the fact that her ex-husband, Shawn Harris, is serving a six-year prison sentence for sexually assaulting her. The judge reduced the spousal maintenance amount to $1,000 per month because of the domestic violence allegations. On appeal, the order of spousal maintenance was reversed, based in large part on Crystal Harris' argument that Shawn Harris has no expenses while in prison. Under current law, he could ask the court for spousal maintenance again when he is released. His release is scheduled for 2014 if he serves his entire sentence.

In a separate proceeding, a judge ordered Crystal Harris to pay her ex-husband $47,000 in attorney's fees. This was based on an agreement the Harrises made before Shawn Harris' criminal case, one that Crystal Harris does not believe should have been honored given subsequent events. The total amount later came down to $26,000 when the amount of restitution owed by Shawn Harris in his criminal case was deducted from the total.

Crystal Harris testified before the Assembly Judiciary Committee in support of the bill on March 19. She says she felt "re-victimized" by the spousal maintenance and attorney's fee orders. Other supporters of the bill say it is necessary to prevent a second injustice against domestic violence victims, and to give "peace of mind" to said victims.

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March 19, 2012

Senate Democrats Push for Reauthorization of the Violence Against Women Act

948508_88800125_03192012.jpgDemocrats in the United States Senate began a push to reauthorize the Violence Against Women Act (VAWA), along with new provisions that would expand the law's protections to additional groups of people. The proposal has proven controversial, which may not be surprising considering the contentious political atmosphere in Washington at the moment. Supporters of the law, which has found broad support in Congress in the past, argue that it is necessary to provide protection to certain vulnerable groups. Critics in the Senate have expressed general support for the new bill, but also concern over some of its provisions. Some Republicans have questioned the timing of the campaign for reauthorization, but a full debate has not yet occurred that might illuminate competing positions on the law.

VAWA became law in 1994 when President Bill Clinton signed it. It had passed Congress with broad support. The law authorized up to $1.6 billion to go towards enhancing law enforcement's ability to investigate and prosecute violent crimes against women. It made people convicted of violent crimes against women liable to their victims for restitution, and it provided victims with a form of civil relief if prosecutors opted not to prosecute their cases.

VAWA also provides funds for a variety of services to help victims of domestic violence and programs to educate the public about the issues. It supports community programs aimed at preventing violence, programs for immigrant women, crisis support services, and legal aid. The law includes provisions to help victims who have disabilities, and it provides protection for women who face eviction due to domestic violence-related incidents. VAWA has been instrumental in providing resources for people in abusive relationships who need assistance with divorce, child custody, and other legal matters.

Congress reauthorized VAWA with broad bipartisan support in 2000 and 2005. The 2000 reauthorization created the Office on Violence Against Women as part of the Department of Justice. The Office administers grants and helps develop national policies relating to domestic and dating violence and sexual assault. The statute requires reauthorization in 2012 or the law will expire.

The proposed reauthorization would expand the law's protections to immigrants, including undocumented immigrants, Native Americans, and same-sex couples. It would give Native American tribes jurisdiction to prosecute non-members who are accused of violence against tribe members. This would, according to NPR, supersede a 1978 Supreme Court ruling holding that tribal courts lack that jurisdiction, even if the alleged crime occurs on a reservation.

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December 8, 2011

Court Approves Removal of Children from San Diego Home Because of Domestic Violence

A recent decision from the Fourth District Court of Appeals in San Diego, In re I.A., et al, affirmed a trial court decision to remove two children from their home after the children allegedly witnessed one or more incidents of domestic violence between their parents involving weapons. The mother had appealed the trial court's order, challenging the sufficiency of the evidence.

The case began with a petition by the San Diego County Health and Human Services Agency on behalf of two children, identified as 4 year-old I.A. and 2 year-old N.A. The petition alleged that the children were at "substantial risk of serious physical harm" due to domestic violence between their parents, identified as M.G., their mother, and Ivan A., their father. The parents were apparently divorced but living together for financial reasons. The Agency alleged that the parents had an argument in the presence of the children in which Ivan threatened to hurt M.G., after which M.G. used a cup to hit Ivan on the head, making his nose bleed, and cut him on the arm and chest with a box cutter. Police arrested M.G. and charged her with assault with a deadly weapon, but Ivan declined to request a protective order and helped pay her bail.

The Agency took the children to a children's center and later placed them with nonrelative extended family. I.A., the older of the two children, told the social worker assigned to the case that he had witnessed arguments and incidents of violence between his parents, including attempts by Ivan to choke M.G., but he denied seeing the box cutter attack. While the parents' accounts of the fight conflicted in many ways, the main aggressor was found to the the mother, M.G. She reportedly expressed remorse and agreed to work services that would reunite her with the children.

After a hearing that included testimony from social workers and child care workers assigned to the case and who had worked with the parents and the children, the court concluded that domestic violence had occurred. It ordered the children placed with the nonrelative extended family member and ordered the parents to engage in reunification services. M.G. appealed, contending that the evidence did not support the court's findings of domestic violence or risk to the children.

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