Domestic Violence: Lesson 5 of 11 Series. Understanding Legal Issues.

REMINDER, I am currently taking a Domestic Violence class, and wanting to share with you as I go through each lesson. Michelle Money is the instructor; He words will be in quotation marks.




LESSON 5 - Legal Issues

“Understanding that the law is there to protect you and your rights will make it easier for victims of domestic violence to gain the confidence to escape.”

Many folks in an abuse relationships do not often make decisions to leave because they are actually just unaware of the legal issues which may occur; concerned of what their partner may have the rights in doing to them; could they loose their children.

The first step in learning the laws is for the victim to proactively seek what the law can and can not do in protecting them; handling divorce; custody issues.

“What the Police Can and Can't Do The first contact many victims of abuse will have with the police will occur if and when 911 is called because of a "domestic disturbance" … Most police departments today have very specific guidelines in place for how they are required to respond to domestic disturbance or domestic violence calls … It is also crucial because responding to a domestic dispute can be very dangerous – before arriving on the scene, police officers don't know if they're walking into a heated argument that can be easily defused or a major confrontation involving drugs, alcohol and weapons.”

“Domestic disputes are some of the most dangerous situations police officers face … sometimes referred to as the 80/20 rule: Eighty percent of the incidents involve the same twenty percent of families repeatedly.”

“It is important to understand that there is a distinct line drawn between immediate physical danger and what is considered a domestic "dispute" in these situations. If there has been a loud argument, objects thrown and a disturbance, there may be only a warning issued by the police if they cannot determine that there is any immediate physical danger … unless there has been an obvious physical threat of harm, there is little that the police can do other than warn both parties. However, and this is very important, once a physical attack has taken place, the police are required to take action in most jurisdictions.”

“If an individual has been physically harmed in any way during a domestic dispute, the police will be expected to:
Arrange for transportation to a medical facility for the victim for evaluation and treatment.
Allow the victim to gather some personal belongings and remain with the victim to ensure their safety until they are ready to leave the premises
Inform the victim of their right to a Protective Order (variously called a PFA (Protection From Abuse Order) or RO (Restraining Order), depending on the area.
Provide victims with referrals to local domestic violence agencies.
Advise victims to preserve evidence of any physical violence, including taking photos of injuries and preserving ripped or damaged property and clothing.
Prepare an official, written report of the incident. (Be sure to ask for the report number. You will want to request a copy of the official report later for your own records. To get this, you will need to contact the police department the next day. If you apply for a Restraining Order or PFA down the road, a copy of this report will be important to your application. It will bolster your case for why you need an Order to protect you from your abuser.)” “If the injuries are severe enough and the situation warrants it, the police may arrest an abuser on the spot if a victim wants to press charges, but this is determined on a case-by-case basis and varies by jurisdiction.
*Police Domestic Violence Response Policies vary from state to state and region to region. Please be sure to check with your local authorities to see what the laws are in your local area. You can contact your local police force or visit their website to find out what their official domestic disturbance policy is.”“A common problem is that victims often say at the time of the incident that they want to press assault charges against their abuser … Days later they may reconcile with their partner … If they choose to drop the charges, the courts (until recently) had no recourse but to drop the whole thing. For this reason, some local municipalities and cities are now prosecuting domestic violence as a criminal offense without the testimony of the victims. In these instances, the violence is viewed as a crime against the community and prosecutors are taking a zero tolerance approach to domestic violence. Even if the victim decides to drop the charges, the prosecutor can proceed without the victim's testimony or cooperation.”

“The police can also get an Emergency Protective Order from an on-call judge if the situation warrants it. If children are involved, an Emergency Custody Order can be obtained from an on-call family court judge. However, these last only a few days and the victim must follow up with the Domestic and Family Courts to get more permanent orders put in place to continue their protection.”


“Understanding the Different Types of Protective Orders… from state to state, and sometimes from region to region, there are various names used to describe the same type of Order … to get the most accurate information for your particular situation, you should refer to the laws of your state.”

“Protective Orders: There are several different names for an Order of Protection and all can be applied for free of charge in all states if they are the result of Domestic Abuse. The most common are Protection From Abuse (PFA), Order of Protection or Restraining Order … "PRO" (Permanent Restraining Order), although that really refers only to a Protective Order or Restraining Order that has already gone to court and been made permanent after a hearing.”

“Orders of Protection … fall into three different categories:Emergency Orders: These are generally Protective Orders that last between three and five days and no more than a week. These are obtained by police officers on your behalf only when they feel that you are in immediate danger. They are generally signed by whatever judge is on call at the time of a domestic abuse incident. An Emergency Order can also extend to children if they are in danger and may grant the victim temporary custody of any children of they are also in danger at the hands of the abuser. Generally, an Emergency Order will indicate a certain distance that must be maintained between the victim and the abuser and will also indicate that the abuser can not contact the victim in any way.Temporary Orders: The next step requires a pro-active approach by the victim. In order for a Protective Order to stay in place beyond on the initial few days, the victim must file a request for a Temporary Order that will extend the Protective Order until a Hearing can be scheduled. The person requesting the Temporary Order will need to fill out the paperwork at the local family court or through his or her attorney and ask that it be served either by a law enforcement officer or through an official process server. The Order will go into effect as soon as the Order is served. Usually it will last only until the first hearing, which will be scheduled within a month or less.Permanent Orders: Although referred to as "Permanent," the name is misleading. Permanent Orders can last up to five years but are usually much less and are revisited periodically by the court to see if they are still warranted by the situation. These are put in place after an actual Hearing on the facts of the case. This is when the victim will want to have as much information and evidence as possible to show the judge, including any police reports, photographs, written records of abuse, the testimony of witnesses, etc. A Permanent Order can be for just the victim or for the victim and any children.”
“Other Things a Protective Order Can Do
There are several other ways that a Protective Order can help you until you determine where you want to go or what you want to do:
You may apply for temporary child support and/or maintenance if you fill out an income and expense form.
You may request temporary sole possession of the spousal home and other property such as a car. Note: This does not hinge solely on whose name is on the mortgage or car loan. Do not believe everything your abuser told you. Consult an attorney or legal aid advocate.
The judge can also order that your spouse continue to pay certain debts during the time of the Protective Order.
The judge can require that all property be barred from sale or distribution and, if your abuser damages any of your property, he be made to compensate you for all damages.”
Hopefully, at this stage, the victim “realize that they are in a situation from which there is no turning back and consult a domestic abuse outreach agency or an attorney specializing in divorce and custody issues that involve domestic abuse. It is particularly important that those who have been abused have moral, emotional and legal support while getting divorced and establishing their custody rights so that they are treated fairly by the legal system and get all of the support that they so richly deserve
.”

“A Word of CautionOnce a Protective Order is in place, do not assume you are safe … While the laws are designed to protect the victim, the Order is put into effect to tell the abuser what they can NOT do. Many abusers will fight this battle in court. Some will become enraged and step up their pattern of abuse and confront their victim again. Unfortunately, this means that there will be at least one more confrontation – and studies show that, because their victim has taken the steps to "fight back," they are often more aggressive
. Once the Protective Order in place, if the abuser shows up or has contact with the victim, the “the police can immediately arrest them for violating the Order.”

REMEMBER: You must keep the Protective Order in your possession at all times ! If children are involved, “be sure that their school or daycare has a copy as well. Any close family and friends who are aware of the situation should also be informed – they can be your eyes and ears, watching to make sure you aren't being followed and warning you of anything out of the ordinary. Be sure that your employer is aware of your situation (… your employer can not by law discriminate against you because you are the victim of abuse …. essential that your supervisor is aware of the situation … if your abuser is on the premises, the company knows to immediately notify the authorities and have him removed). Your duty is to protect yourself and make sure that there is no danger to others who may be innocent bystanders.”

　

Great resource, including information about the various state laws, Protective Orders, Legal Procedures and State Laws (includes links to every state; overview how the court system works in every state, including how to get a protective order, how custody issues work and even how to download the forms you need for many states and addresses and phone numbers for courthouses):
www.womenslaw.org or 800-799-7233 (SAFE)

“REMEMBER: If your abuser has access to your computer – cover your tracks!”