It may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sex photos/videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.
Introduction
Unlike in other states, where evidence of misconduct such as the nonconsensual publication of intimate photos taken during the marriage may weigh in favor of one spouse against the other in divorce proceedings, California’s ‘no-fault’ divorce policy renders such evidence inadmissible or improper. In California, divorce can be granted because of “irreconcilable differences” or “incurable insanity.”1 Evidence of misconduct during the marriage is normally not admissible and improper in divorce proceedings2 (but evidence of abuse must be considered in child custody proceedings).3 Evidence obtained by eavesdropping is not only not admitted,4 but if the court suspects eavesdropping, the evidence may spur a referral “to the proper authority for investigation and prosecution.”5
Text of Statute
California Family Code § 2310
"Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally:
(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.
(b) Incurable insanity."
California Family Code § 2335
"Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible."
California Family Code § 3011
"In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, "abuse against a child" means "child abuse" as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means "abuse" as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, "controlled substances" has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e)
(1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation."
California Family Code § 2022
"(a) Evidence collected by eavesdropping in violation of Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1 of the Penal Code is inadmissible.
(b) If it appears that a violation described in subdivision (a) exists, the court may refer the matter to the proper authority for investigation and prosecution."
Cases
Due to California’s “no fault” policy, the divorce statutes were not searched for factually relevant cases.
Introduction
If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, s/he may use evidence of this type of misconduct to establish abuse or harassment by his/her former spouse or lover. When determining child custody, the court’s primary consideration is to decide what is in the best interests of the child. If the court makes a finding that abuse has occurred, that gives rise to a finding under FC § 3044 that the perpetrator of abuse cannot get sole or joint legal or physical custody of the minor children of the parties. This is a rebuttable presumption but is an extremely powerful factor in California’s statutory scheme to prevent abuse.
Text of the Statute
California Family Code § 3011–Best Interests of the Child Standard:
“In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e)(1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.”1
Cases
Section 3044 provides that awarding sole or joint physical or legal custody to a parent who has committed domestic violence against the other parent is detrimental to the best interests of a child.2
Introduction
Cal. Family Code § 721 offers a good example of the concept that spouses have duties to one another, specifically that spouses have fiduciary duties to one another because of their relationship. A claim under this statute may be appropriate if one spouse sells a sexual photo or video without the consent of the other spouse.
Text of the Statute
California Family Code, § 721:
“(a) Subject to subdivision (b), either husband or wife may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.
(b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:
"(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.”
Cases
Research is ongoing.
Introduction
Although evidence of misconduct is not considered by the court when determining whether to grant a divorce, documented evidence of domestic violence is considered when determining the amount of spousal support due. This consideration may be valuable for victims for whom the online publication of intimate images is one component of an abusive relationship. Additionally, there is a presumption against providing spousal support to a spouse with a criminal conviction of domestic violence against the other spouse.
Text of the Statutes
Cal. Fam. Code § 4320
“In ordering spousal support under this part, the court shall consider all of the following circumstances:
[. . .]
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.”1
Cal. Fam. Code § 4325
“(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.
(b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.
(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.”
Cases
Research is ongoing.
Cal. Fam. Code § 4320 (West 2011). ↩