Divorce and Domestic Violence: When Family Law Meets Criminal Law

October 26, 2017 – 07:34 am
Legal Expenses Insurance | Family Legal Protection

Divorce is frequently a triggering event for domestic violence. Domestic violence is generally defined as abuse by one partner against the other in a marriage or other intimate relationship. Pushing, shoving, hitting, sexual assault, and other forms of physical attack are all forms of domestic abuse, as are stalking, intimidation, isolating a partner from others, withholding money, and emotional abuse of all kinds. Research from the National Coalition Against Domestic Violence found that on average nearly 20 people per minute are physically abused by an intimate partner in the United States. This equates to more than 10 million women and men each year. One in three women and one in four men have been victims of some form of physical violence by an intimate partner in their lifetime. One in five women and one in seven men have been victims of severe physical violence by an intimate partner in their lifetime. Further, one in seven women and one in 18 men have been stalked by an intimate partner in their lifetime to the point that they felt very fearful or believed that they or someone close to them would be harmed or killed.

Although the legal definitions of domestic violence can vary between states, the National Center for State Courts’ State Court Guide to Statistical Reporting 2009 defines domestic violence as “criminal cases involving violence, coercion, or intimidation by a family or household member against another family or household member.” All 50 states and the District of Columbia have statutes that require the courts to consider domestic violence committed by one parent against the other in resolving a custody or visitation dispute between parents. Many states also have statutes or case law that require courts to consider the occurrence of violence in a child’s household in resolving custody disputes aimed at ensuring a child is not placed in a household where violence occurs or where a parent will not protect a child from future violence. As recently as 2010, 22 states had enacted presumptions against awarding custody of children to parents who committed family violence, whereas the remaining states and the District of Columbia only required that a court consider family violence as a factor in determining child custody. Most states do not have statutes that discuss exactly what level and frequency of violence determine possession and custody, allowing judges wider discretion to consider the impact of domestic violence. Some states such as New Hampshire and Nevada define abuse in terms of the state criminal codes, requiring the abuser’s conduct to fit into one of the list of crimes in the statute before it is considered in a family law case. States set out different kinds of proof to show what is admissible or required to prove domestic violence. Arizona requires the courts to consider findings from other courts, medical reports, police reports, child protective services reports, and witness testimony, whereas in Massachusetts the issuance of an ex parte protection order is not admissible to show abuse. Most state statutes do not require proof that the child witnessed the violence or that the violence had an impact on the child. However, at least six states statutes require the court to determine whether the violence had an adverse effect on the child when custody and possession are being decided.

Source: www.americanbar.org

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