February 2017 – Domestic violence law and family law

Unfortunately domestic violence law and family law frequently go hand-in-hand. It is nearly impossible to practice one without being involved and practicing the other. In so many situations, violence in the home is at its peak just before or right after litigation is filed for divorce or paternity. While it is upsetting to learn the end of a relationship is near, violence is never appropriate or the answer.

What I find so surprising is that many clients, and potential clients, do not truly understand what domestic violence is. Men and women alike do not always realize that domestic violence does not have to be a physical attack. Physical abuse is certainly horrible, but so is emotional abuse and control through financial or other emotional means. Domestic violence is an act against a person with whom you have an intimate relationship and commonly includes acts such as: threatening or intimidating, assault, custodial interference, trespass, criminal damage, disorderly conduct, harassment, and stalking. Many of these offenses do not require physical contact, but can have lasting effects on the recipient. All domestic violence has a negative impact on the children caught in the middle, even if they are not a direct victim.

There is also another side to this issue – the use of domestic violence allegations against a partner to gain an advantage in family court. As a family law practitioner, I try to be very careful not to perpetuate the misuse of domestic violence as a strategic move. An Order of Protection, which can grant exclusive possession of a home and restrict contact between the Defendant and a child, should only be used when the Plaintiff is truly in fear for their physical, emotional, or personal safety and well-being. Even under these circumstances, I frequently advise clients not to list children on an Order of Protection unless there has been actual violence against the child. While a family court judge can effectively “overrule” a no contact order with a child, the hurt caused in the interim is detrimental to both the parent and child.

There is often a fine line to walk between safety of a victim and the individual rights of the accused abuser, and the facts are often in a gray area confused by high emotions, alcohol and/or drugs, miscommunication, and a long history together. If you are a victim of domestic violence (physical, verbal, or emotional), I encourage you to safely get out as soon as possible. This is not always as easy as it seems to an outsider. To prepare, you should document incidents with your local police department and with text messages or emails. Document all injuries by taking pictures. On the other side, if you believe that your spouse may make false allegations against you, get out as soon as you can. Avoid all in person contact and document any communication through text and email. Be proactive and file for divorce or paternity as soon as possible, protection of the children though physical separation of the spouses or parents should be the number one goal.

For more information on Orders of Protection, requesting a hearing on an Order of Protection, prohibition on possession of firearms after a hearing, and the effect of domestic violence on legal decision-making and parenting time, please look for my upcoming blog series on these topics.

Owens & Perkins, Attorneys at Law offers free 30-minute consultations. If you would like to schedule a complimentary consultation, please call the office at (480) 630-2464.