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Introduction to Domestic Violence and Family Law Cases
Domestic violence can affect a family law case in many different ways. For starters, it could be the reason why a divorce is pending, or why one person is seeking an order of protection. No matter what the scenario is, the court is going to take allegations of abuse incredibly seriously in all family law matters.
Domestic Violence Statistics
In the United States, on average, nearly 20 people per minute are physically abused by an intimate partner.[i] Over the course of a year, this number is roughly 10 million woman and men who are physically abused by a partner.[ii] 1 in 3 women and 1 in 4 men have been a victim of physical violence by an intimate partner at some point in their lifetime.[iii] 1 in 5 women and 1 in 7 men have been victims of severe violence by an intimate partner in their lifetime.[iv] On average, more than 20,000 phone calls are placed to domestic violence hotlines nationwide.[v] 1 in 15 children are exposed to intimate partner violence each year, and 90% of these children are eye witnesses to this type of violence.[vi]
Domestic violence does not always need to be physical to be considered abuse. Emotional abuse is also under the umbrella of domestic violence, and will be taken seriously by the court system. Psychological abuse, or emotional abuse, involves trauma to the victim caused by verbal abuse, acts, threats of acts, or coercive tactics.[vii] Perpetrators use psychological abuse to control, terrorize, and denigrate their victims.[viii] It frequently occurs prior to or concurrently with physical or sexual abuse.[ix]
How to Leave a Domestic Violence Situation
While many people do not leave domestic violence situations, there are many who do. The first priority of a person leaving this type of environment is to keep yourself, and any children you have safe.[x] Statistics show that the most dangerous time for the abused person is when they are attempting to leave the situation.[xi] For this reason, it is crucial that the person and their children leaving go to a place that the abuser cannot find. This will take some careful planning before hand, that way when the person leaves, they have a game plan about where to go, rather than just leaving. If a person just ups and leaves, they could run the risk of being found by the abuser, and suffering at the hand of the abuser even worse than before.
So, when putting together a plan to leave, the person must first of all try to put away money to take with them.[xii] Unless they plan on going to live with someone who has said they will support them, using cash after leaving will be one less way the abuser will be able to track this person down. Next, the person should make a list of contacts of safe people that they could call if necessary.[xiii] Just as with the money, using a cell phone could lead to the abuser finding you, so memorizing these numbers or keeping a physical list would be the best scenario. It can be incredibly stressful trying to plan this type of escape, but it is important that the person take everything important they can think of. Once the person leaves, they will not want to go back for anything after – seeing the abuser even while under the protection of the police, could be a traumatic event. So, the person should take important documents; like birth certificates, social security cards, and any other documentation that could come in handy in the future (like pictures of past abuse).[xiv]
Now, it is not always possible to plan ahead in an abusive relationship. Or you may have a plan in place, then an abusive event takes place and you feel that you need to leave immediately. In those types of situations, if it is during the day – you should go to the courthouse to receive an order of protection, then bring it to the Sheriff’s office to have it enforced. If it is at nighttime, you should go somewhere safe, then look into the order of protection in the morning. There are many services in the United States that will help victims of abuse free of charge, so be sure to look for help, even if you do not have any money.
Temporary Restraining Orders
Temporary restraining orders are available to individuals that believe they are in danger from another individual.[xv] A temporary restraining order is a court signed document, signed by a judge, ordering an individual to stop harming you or stalking you.[xvi] You can obtain a temporary restraining order even if you do not have a domestic violence case pending before the court.[xvii] You, or your attorney, will need to show why this temporary restraining order is necessary to avoid further abuse.
Once the judge signs that temporary restraining order, and the abuser is notified of that order, the abuser will be restrained from all contact with you, your children, and other specified family members.[xviii] These can, and often times does, include the person who you are staying with to hide from the abuse. Even though the person who sought the temporary restraining order will likely not want the abuser to know where they are, if the abuser shows up to the location where they are – they can call and notify the police that the abuser is violating the temporary restraining order, and have them arrested.
The temporary restraining order will also extend to places such as your home (especially if you are staying there still), your workplace, your car, and your children’s school and childcare facility.[xix]
Child Custody and Domestic Violence
Now, if you have children with the abuser, then unless there is abuse to the children, it is likely that the court will still grant visitation rights to the children.[xx] Even though after you leave a domestic violence situation you have no desire to see this person, if there are children involved, more times than not the court is going to decide that the father can still be involved with the children.[xxi] Now, if you do leave an abusive relationship, it is important that you go and get emergency protective order that will not only give you custody of your children, but it will require your abusive spouse to stay away from all of you.[xxii] Note that not all abusive relationships with children are between spouses, it can be between girlfriends and boyfriends – but the process will still be the same. If you fail to get this emergency protective order, your spouse or partner could accuse you of kidnapping the children – which will lead to a whole slue of other issues that will take the spotlight off the abusive relationship.
The emergency temporary orders is just that: temporary. This means that you will need to make other plans, with the court, to determine long term custody arrangements for your children. If you are going through a divorce proceeding, you can file what is known as a temporary orders hearing. This will allow you to present your case to the judge and ask him to make a decision about the custody of your children while the divorce proceeding is going on. The judge will look at both sides to the case, and determine what they believe is in the best interest of the children.[xxiii] Situations like this are why it is important to keep track of the abuse and documentation if at all possible. Otherwise, it is just a he said, she said situation in court and the judge could decide unfavorably against you, if the abuser some how makes a better case against you. These types of situations are why having an attorney on your side is best. The attorney will be able to objectively tell the court your side of the story, and make sure that all the important information is told to the court, while the unimportant information is overlooked.
As said previously, unless there is some type of abuse toward the children, the court is likely going to give the abuser visitation of the children.[xxiv] You can, in court, request that those visitations are supervised for a time being, or require the abuser to not drink or have certain people around the children.[xxv] It will depend on the judge, but most family court judges will be willing to hear you speak directly in court about your wishes for the situation – even with an attorney. The judge wants to make sure that your family situation is the best it can, under the circumstances. Most judges recognize that you know your family better than he does, so he takes what you say to heart. It is important to speak up in court about the wishes you have and express them clearly to the judge. If the abuser is known to be abusive while he is drunk, you can ask the judge to ensure he is sober when he is visiting with the children (which can be accomplished in a few ways – like TASC testing).
You can also request that when you drop off the children, or abuser picks up the children, it be done so at a neutral pickup site.[xxvi] You can even ask that another third party person, like a sister or parent, be the person to transport the children. Avoiding contact with the abuser, or having contact at a Target rather than your home, will help to decrease the likelihood of further abuse.
Conclusion to Domestic Violence and Family Law Cases
If there are children involved in a domestic violence situation, and you go through the court system for a divorce or protection, it is likely that you will be dealing with the abuser for a long time. Unless the court determines that the abuser is a threat to the children, the court is going to grant some type of time together between the abuser and the children. So, since you will have to deal with the abuser for some time, it is important to have a game plan about how to handle these types of situations. Attorneys are crucial to helping with the legal aspects, while family members and friends can be vital to your personal recovery
[i] See National Statistics National Coalition Against Domestic Violence (Accessed August 22, 2016) http://ncadv.org/learn-more/statistics
[vii] See What is Psychological Abuse? National Coalition Against Domestic Violence (Accessed August 22, 2016) https://www.ncadv.org/files/Domestic%20Violence%20and%20Psychological%20Abuse%20NCADV.pdf
[x] See Leaving an Abusive Relationship: How to Protect Yourself Divorce Net NOLO Legal Encyclopedia (Accessed August 23, 2016) http://www.divorcenet.com/resources/divorce/leaving-abusive-relationship-how-protect-yourself.htm
[xv] See Temporary Restraining Orders Divorce Net NOLO Legal Encyclopedia (Accessed August 23, 2016) http://www.divorcenet.com/resources/divorce/temporary-restraining-orders.htm
[xx] See Child Custody and Domestic Violence Divorce Net NOLO Legal Encyclopedia (Accessed August 23, 2016) http://www.divorcenet.com/resources/child-custody/child-custody-and-domestic-violence.htm