| Chapter
12
Covering Domestic Violence
By Sarah Huntley
The Legal System’s Response to Domestic Violence
Despite a proliferation of shelters and social service programs that attempt to address the issue of domestic violence, the courts have become a significant part of society’s efforts to make homes safe. Both the civil and criminal courts can play a role.
Civil Courts
Protection orders: Victims who are seeking relief from an abusive partner can sometimes find it by petitioning a judge for a restraining or protection order. These orders typically limit an accused perpetrator from coming within a certain distance of the victim. They also prohibit the accused from going to the victim’s home, work, or any other place she can reasonably be expected to frequent. In order to seek a protection order, a victim must be willing to assert that he/she is in danger and provide examples of times the subject has made threats or “demonstrated violent behavior.” In many states, the application for a restraining order includes a checkbox or information field that requires a victim to specify he/she believes the case can be characterized as domestic violence. A victim does not have to have any attorney and most states waive filing fees in cases of domestic violence. These documents are public records. Except in extraordinary circumstances, the hearings to obtain them occur in open court.
There are two types of orders:
- Temporary: This is the first order a victim can seek. Different courts handle applications for protection orders differently, but many judges will hear requests for a temporary order on the same day as a victim’s application. The hearing is typically very quick, based largely on the papers the victim has signed. Advocates urge victims to keep paperwork of any protection orders with them at all times. A temporary order typically lasts 120 days.
- Permanent: In most states, the court has a 10-day window to set a hearing to make a protection order permanent. To take this step, a victim is usually required to prove that the subject of the proposed order has been given notice of the court’s previous decision and of the scheduled hearing to make the order permanent. This notice requirement is often fulfilled by the local sheriff’s office, a professional process server, or a disinterested third party.
The courts have taken extra steps to ensure that law enforcement officials take their responsibilities to notify the subject of a proposed order seriously. If a police or sheriff’s deputy comes into contact with the subject of protection order papers, the officer is obligated to serve them. It does not matter whether the contact is related to domestic violence. If a person is stopped, say, for a traffic infraction, the officer must serve the papers. It also doesn’t matter whether the papers are from a different jurisdiction. The onus is, once again, on law enforcement. The requirement is called “full faith and credit.”
A permanent restraining order hearing is usually longer than a temporary one with testimony possible from both sides. In some states, permanent means just that. If victims decide they want the terms or conditions relaxed or eliminated, they must file a motion with the court and explain why they no longer feel they are in danger. In other states, the terms are shorter, from 3 to 5 years.
What happens if someone violates an order?
A protection order by itself does not create a criminal record. But violation of a protection order can. The violation itself is a misdemeanor, but it is often accompanied by related criminal charges, which might include felonies. Victims’ advocates believe protection orders – whether temporary or permanent – are an important tool against domestic abuse. According to Paula Hammond, executive director of Project Safeguard in Denver, studies show that about 84 percent of orders are effective in ending the violence, either because the relationship comes to an end or the order underscores the need for the dynamics to change.
Divorces and custody cases: The other role civil courts play in domestic violence centers on a victim’s attempt to leave an abusive partnership. Family court judges are at the forefront of sifting through allegations of abuse that come up as part of divorce and child custody cases. The latter can be particularly significant to victims who fear losing their children – and to reporters looking for documentation of past problems. Domestic violence victims with children are often more reluctant to leave even the most abusive of relationships. It may seem counterintuitive. Wouldn’t a good mother want to remove her child from a dangerous situation? Victims often have reason to believe that they will lose their children altogether if they leave – either because they can’t support them or because their spouse will be able to gain custody. A 2001 study by the American Psychological Association’s Presidential Task Force on Violence and the Family found that fathers who battered the mother are twice as likely to seek sole custody of their children as are non-violent fathers. That can present a formidable obstacle for women who want out but worry they don’t have the resources to fight for their kids in court.
Continue to the next page in "Chapter 12: Covering Domestic Violence" >>>
<<< Return to the previous
page in "Chapter
12: Covering Domestic Violence"
|
