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How does Family Code Differ From Penal Code?

Both the Penal Code and the Family Code address domestic violence prevention. While the relevant Family Code provisions focus primarily on separation and safety, the relevant Penal Code provisions are focused more on holding abusive partners criminally accountable for their actions. The purpose of this article is to compare the treatment of domestic violence under the Family Code with treatment of domestic violence under the Penal Code.

In order for an act of abuse to rise to the level of domestic violence, the victim must share a “qualifying relationship” with the abuser. The Penal Code recognizes the following qualifying relationships:

  1. Current or former spouse;
  2. Current or former registered domestic partner;
  3. Current or former live-in romantic partner (“cohabitant”);
  4. Parent of the abuser’s child;
  5. Current or former fiancée; or
  6. Someone who the abuser is seriously dating or has seriously dated.

The Family Code recognizes a broader set of qualifying relationships, including:

  1. Someone with a qualifying relationship recognized under the Penal Code;
  2. Child or stepchild;
  3. Sibling or spouse’s sibling;
  4. Grandparent or spouse’s grandparent; or
  5. Grandchild or spouse’s grandchild.

Under the Penal Code, it is a felony to willfully inflict physical injury upon an intimate partner (i.e., someone with a qualifying relationship to the offender), even if the injury is only slight. It is also the misdemeanor to willfully touch an intimate partner in a harmful or offensive manner.

By contrast, the Family Code broadly defines domestic violence to include both physical abuse and other forms of abuse. Specifically, non-physical acts such as stalking, threats, impersonation, harassment, annoying telephone calls, destruction of personal property, indirect contact, or disturbance of the peace, may qualify as “abuse” within the meaning of the Family Code.

Even if evidence of domestic violence does not support a criminal conviction, it may nevertheless be sufficient to support the issuance of a protective order under the Family Code. While the Penal Code requires proof “beyond a reasonable doubt,” the Family Code uses a much lower “preponderance of the evidence” standard. In other words, under the Family Code, the evidence need only show that the responding party probably committed domestic violence.

Finally, an important difference between the Family Code and the Penal Code is the parties involved. The parties to a Family Codeproceeding are the alleged victim (known as the “petitioner”) and the alleged abuser (known as the “responding party”). Thus,Family Code remedies are most effective where there is little or no history of physical violence between the parties, or where the responding party has a limited emotional investment in the relationship. In these cases, the responding party is more likely to be deterred from further misconduct by the threat of arrest, or to reasonably conclude that the petitioner has resolved to put an end to the relationship.

However, where there is a significant history of physical violence and the responding party’s sense of identity centers on the domestic relationship, the responding party is more likely to consider the family court proceedings to be an intolerable, public form of rejection and may attempt to escalate the violence. Under such circumstances, criminal charges are sometimes preferable because the victim is not a party to the criminal action. Rather, criminal proceedings primarily involve the law enforcement system versus the lawbreaker.

Acts of domestic violence sometimes give rise to other, related criminal charges. For example, the Penal Code prohibits cutting or otherwise damaging a phone line or phone equipment. During an episode of domestic violence, the offender may commit this crime by preventing his or her intimate partner from calling for help. Additionally, the crime of “aggravated trespass” is committed when an offender makes a criminal threat, and within the next 30 days, enters the person’s home or workplace to carry it out.

To find out more about how to make or refute allegations of abuse in a family law setting, call one of our Certified Family Law Specialists at (949) 229-8546 today. For help formulating and implementing a safety plan, call the National Domestic Violence Hotline at (800) 799-7233.

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