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Is trespassing considered an act of Domestic Violence in a custody dispute?

Van Nuys, CA |

in California is trespassing considered an act of Domestic Violence?
and if convicted, can the trespassing conviction be used against you pursuant to fam code 3044?

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Attorney answers 4

Posted

No, it requires a finding of domestic violence.

However, I have argued cases where there was a criminal domestic violence charge, the defendant plead- out to lesser included offense, like trespassing or vandalism, and the "victim's" attorney attempted to raise the 3044 presumption nevertheless, based upon the original charge and allegations.

Asker

Posted

were they successful in raising the 3044 presumption?

Asker

Posted

if there is a restraining order that was issued with out a finding of domestic violence then the perp was convicted of trespassing can the 3044 presumption be used?

Timothy Miranda

Timothy Miranda

Posted

No, they were not successful. In order for a CLETS domestic violence RO to issue, there must be a finding of DV.

Asker

Posted

There is a clets DVRO that was stipulated to with out any findings of DV.

Timothy Miranda

Timothy Miranda

Posted

Even if the judge made no specific DV findings on the record, the mere stip and issuance of a CLETS DVRO is sufficient to trigger 3044. I would need to know all of the facts, but it is possible that an effective argument could rebut the presumption.

Asker

Posted

the judge stated on record that the 3044 would not be used. Buuuuuut...... the attorneys failed to include the wording "3044 would not be used" in the OAH.

Asker

Posted

I seems tha there must have been a conviction of DV in order for it to kick in. For purposes of this section, the requirement of a finding by the court shall be been convicted within the previous five years, after a trial or plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273. 5, 422, or 646.9 of, the Penal Code.

Timothy Miranda

Timothy Miranda

Posted

The trespassing conviction can be construed to be "stalking" or "harassing," which is "abuse" under 6200 et seq. This, particularly since there was a voluntary plea and stipulation to a DVRO, which is itself quasi-criminal. However, if the judge said that 3044 would not attach, then it will not attach, at least not in that courtroom. Get a copy of the transcript if it is not mentioned in the FOAH. If you are not a lawyer, you sound like one, so you should be fine.

Asker

Posted

lol.. not a lawyer.

Asker

Posted

Hey Tim do you know of any case law regarding this topic? or cited cases about this?

Asker

Posted

Tim do you have an answer for this? When trying to prevent an international move away and trying to gain full custody, Is completion of 52 weeks of the batterer's treatment program and abiding by the terms of probation the only thing that can rebut the 3044 presumption?

Posted

Trespassing is not a crime of domestic violence unless it was used as a plea bargain and a real domestic violence case was negotiated away and trespassing was used as a substitute.

Posted

Trespassing, in and of itself , is not a domestic relations case. However, if it is part of stalking it could be. I have no comment on 3044 usage

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

Posted

Your use of the word "trespassing" is not clear, Is the other party coming to your home and spying on you, for example. You need to be more clear about the actions complained of before anyone could provide any guidance.

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