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Is it assault or battery? What should we do?

Santee, CA |

My husband is in the middle of a child custody modification. Yesterday we went to a softball game for his daughter, at the end of the softball game the mothers husband came up from behind my husband and punched him in the back of the head and neck and shoved him to the ground. My husband went to fight back and I told him to stop at which time the other man went to hit him again and elbowed my 6 month old baby in the head and also shoved me out of the way further jostling her. This was in front of a field full of children and parents. We called the police and pressed battery charges. His 14 year old daughter also tried to attack me and swung at me. We pressed charges against him. What now?

Attorney Answers 4

Posted

The police will send their report of the incident to the DA and request a complaint be filed. They should be cited and then have to deal with the criminal charges of a battery. If there is a modification hearing in the midst, you should supplement declarations to include this recent violent incident because it could weigh against the other parent’s parental rights. It could weigh against him/her because it shows propensity for violence which is never in the best interests of the children. If you found this helpful and/or the best answer, please let the attorney know and check the box on the side indicating so. Thank you and best of luck.

Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

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Asker

Posted

He signed a form for a citizens arrest but it's not showing online that the man is in jail. My daughter had to go to the hospital and we are taking my husband in today because his level of pain keeps increasing and one side of his body is weak and numb. I believe at this point that a lawyer would be best to make sure this is handled correctly. Also we will be filing a restraining order against the the man and his daughter on Tuesday.

Martha Bronson

Martha Bronson

Posted

Your daughter and others who were injured may also consider fil a civil suit for recovery of damages d pain and suffering. Please contact a local personal injury attorney.

Asker

Posted

Thank you Martha. We are on the hunt for a lawyer willing to work on a contingency basis.

Posted

Aw, Santee. Well, it is both an assault and a battery. It is also potentially other charges such as child endangerment but it all depends on how the DA views the incident. After reading some of your comments to another answer, I'll just add that it isn't necessary that they have been arrested or that they are in jail. Sometimes people do a "book and release" which is technically an arrest but they don't spend any time in jail.

The DA will review the case and hearing dates and a trial date will be set. I suggest keeping the pressure up on the DA who gets the case so that they take the incident seriously.

The other answer was also correct in stating that you have an additional right to sue the offenders in civil court as well.

Good luck.

Thomas A. Schaeffer, Esq. Law Office of Juarez and Schaeffer PO Box 16216, San Diego, CA 92105 (619) 804-4327 www.jslaw.org This posting is provided for "informational purposes" only and should not be relied upon as "legal advice." Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principals discussed here may differ substantially in individual situations or in different States.

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Posted

I agree with both of my colleagues. Additionally, if you or your husband incurred any damages, you may have a civil suit as well for both assault and battery and potentially intentional infliction of emotional distress. Especially if your baby suffered any injuries that you know of presently or discover in the future as a result of the incident.

If you are interested, I would contact a civil attorney in your area to discuss your options.

I wish you the best of luck.

Disclaimer: This response is provided to your general inquiry through Avvo.com. Said response does not establish an attorney-client relationship.

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Posted

California Family Code Section 3044 is the pertinent section on child custody and domestic violence.

My response to your question is not intended to be legal advice and does not establish an attorney client relationship. Rather, it is simply provided as a free service through Avvo.com. Until there is an executed representation agreement, no attorney client relationship has been established.

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