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Domestic Violence In Criminal And Family Law

By James

Domestic Violence is one of the most challenging issues both as the basis for criminal charges and as an aggravating element in Family Law cases when determining parenting time or legal Decision-Making. People are generally shocked to discover that Domestic Violence does not only mean conventionally-understood physical violence; it is a complex concept encompassing a far broader spectrum of behavior, and it's crucial to understand when Domestic Violence happens, and why it matters. Domestic violence is generally where abusive behavior is used by one partner to gain or maintain psychological or physical power and control over the other partner. It can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person.

Any behavior that intimidates, humiliates, terrorizes, isolates, manipulates, frightens, coerces, threatens, blames, hurts, injures, or wounds someone is classified as domestic violence. Many domestic violence victims are afraid for their safety and the safety of their children. An abusive relationship is defined as a relationship where threats of violence or physical violence occur. It is especially difficult when children are involved in domestic violence situations. Even if the child is not a direct recipient of the violence, but only present during the instances of violence, there can be devastating and long lasting effects. Being married does not entitle someone to hit, threaten, or abuse you in your home. There are criminal and civil remedies to help victims of domestic violence.

The relationships necessary between the parties in order for an offense to be characterized as Domestic Violence are as follows:

  • Spouse or former spouse
  • Parties have a child or active pregnancy in common
  • Familial relationship by blood or by marriage
  • Currently or previously romantic or sexual relationship
  • Child victim who resides in the same household as the defendant

Domestic Violence In Criminal Law

Arizona has a zero tolerance attitude towards Domestic Violence in all of its forms. If you are facing misdemeanor or felony Domestic Violence charges rest assured that the situations is of the utmost importance. Besides the simple fact that Domestic Violence is a crime, a conviction including an acceptance of a plea offer, (which operates as a conviction) carries significant consequences beyond those one might expect as punishment for an ordinary criminal infraction. Assuming a defendant is able to avoid outright incarceration, a Domestic Violence conviction carries special probationary terms and conditions. The defendant will be required to undergo and pay for counseling, and there will also likely be drug/alcohol counseling if use was a factor in the commission of the Domestic Violence offense.

The most impactful consequence of receiving a criminal Domestic Violence conviction even if it’s a misdemeanor is that the defendant will become a "prohibited possessor," thereby losing their right to own or bear firearms or to purchase ammunition. Further, for those defendants whose employment relies upon the ability to carry a firearm such as law enforcement or military; a Domestic Violence conviction will have disastrous results for their career. For those who require a government security clearance in their work, such as defense contractors, civil service or teachers/coaches/counselors, a Domestic Violence conviction can be equally devastating.

Orders of Protection

Domestic Violence allegations can be extremely damaging even if there isn’t a conviction. An Order of Protection can be sought by one party against another even if no criminal charges are brought. An Order of Protection is similar to an Injunction against Harassment, except that a specific relationship exists between the parties. To obtain an Order of Protection, a plaintiff does not need to prove beyond a reasonable doubt that Domestic Violence has occurred. They simply need to convince the court there is reasonable cause to believe that the defendant may commit an act of Domestic Violence or has committed an act of Domestic Violence within a specific period of time. If an order of protection is granted, the judicial officer may find that the defendant be designated a prohibited possessor for the life of the Order. Although an Order of Protection being issued against a party does not have the same punitive implications as a criminal conviction, it is potentially just as serious.

Unfortunately, sometimes an Order of Protection is necessary, and in those circumstances victims should absolutely avail themselves of the court's protection to guard against the risk of future incidents.

Domestic Violence in Family Law

The nature of conflict in a divorce or Special Paternity actions is such that allegations of Domestic Violence are common, and often arise even when they are unwarranted. Some law practitioners unfortunately will seek to gain a tactical advantage in the litigation by advising their clients to unnecessarily seek an Order of Protection against the opposing party when they wouldn't need to or exaggerate the severity of a conflict to mischaracterize common dispute as Domestic Violence. While Domestic Violence is a serious problem, reckless allegations are equally as serious, and there is absolutely no place for making unfounded Domestic Violence allegations strictly because it gives your client a potential leg up.

However, when Domestic Violence has occurred in a marriage with minor children or in a co-parenting situation even without criminal charges being brought, or an order of protection being issued it definitely needs to be addressed because it has very specific implications. Under Arizona laws, a parent may be denied legal custody of their child if that parent is found to have committed domestic violence. The domestic violence would have to be significant for a court to deny the parent legal custody rights.  Different types of official reports may be used in this type of evaluation, such as police reports that document alleged incidents of domestic violence, as well as any medical reports detailing the injuries suffered as a result of such violence.

Courts may review any records created by domestic violence shelters if alleged victims of violence sought refuge in such locations, and they may obtain and review children's school records if there is any discussion of domestic violence in those records. The existence of Domestic Violence is right at the heart of determining how a party will be involved with their child going forward from the litigation. Domestic Violence is a real and prevalent issue and it needs to be handles very carefully, whether you are the victim, the defendant, or a party to a Family Law action where Domestic Violence is alleged.

Adele Drumlevitch, Attorney At Law, LLC. has extensive expertise in dealing with Domestic Violence matters can make all the difference when your liberty, safety or parental rights are on the line in Arizona.

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