Successfully Defending a Domestic Violence Application

While there are many genuine Domestic Violence Applications, experienced practitioners all too often see vexatious applications at the commencement of property and family law settlements.

Regrettably, some parties use the legislation as a defacto method to exclude their former partner from the home or from accessing their children. This can often exacerbate a difficult time and make matters worse.

If you are the respondent to a Domestic Violence Application that you wish to oppose, the best advice is to see an experienced lawyer who can provide you with timely advice on your prospects of success and guide you through the Court process. They can advise you what is a domestic relationship and more particularly what is domestic violence.

A protection order is commenced by way of a formal written application. Careful consideration should be given to this document, as this forms the substance of the complaint. Does the Application disclose that:

  1. A domestic relationship existed between the Aggrieved and Respondent;
  2. An act of Domestic Violence has occurred; and
  3. An act of Domestic Violence is likely to occur again in the future.

If one of the above elements is missing then it is unlikely that a permanent order will be granted by the Courts. To assist the Court in assessing these elements, the applicant is required to detail:

  1. The most recent incident, including dates if known;
  2. The history of domestic violence, including dates if known; and
  3. Why the Applicant believes that Domestic Violence is likely to occur again or a threat is likely to be carried out.

These details, when considered together assist you to prepare a defence. If the elements are all present then consider whether the allegations are true or whether there is some element of exaggeration. You should prepare a detailed response to the allegations.

If the incident did occur you should consider for example:

  1. Did it occur as particularised in the application or is there some other explanation?
  2. What is the context within which the incident occurred?
  3. Is the time frame suggested by the Applicant correct or was it a more distant occurrence?
  4. Did the incident occur in such a way that there is no likelihood of it occurring again?
  5. Where there any witnesses who can corroborate your version and will they be willing to provide evidence at trial?
  6. If the incident did not occur you should consider for example:
  7. Have you got an alibi?
  8. Are you able to independently corroborate that the incident did not occur as described.

Given that there was, presumably, a domestic relationship between the parties, Domestic Violence is often a bitter and hurtful jurisdiction to appear in. Parties find it difficult to focus on the issue. That is, should a Domestic Violence Order be made. A solicitor is particularly beneficial as they are able to dispassionately wade through the Application and look at the merits of the case.

A criminal lawyer can provide you with their advocacy skills and ensure that your defence is properly presented. Often an experienced advocate is able to resolve the matter without it proceeding to trial by highlighting the deficiencies in the elements above.

What To Do If You Are Accused Of Battery-Domestic Violence

It is a simple fact: the act of battery/domestic violence should never be allowed to happen, especially when it is against a spouse or family member. No matter how much someone annoys you or angers you, it should never reach that level. Unfortunately, this type of crime is an unending fact of life that occurs across all income levels, all races and all sociological base groups. Domestic violence is in fact so rampant that many states have introduced tougher laws concerning this crime and the police in a lot of jurisdictions can make the call themselves as to who gets charged with it.

Domestic Violence Laws in Florida

When they passed the latest version of the Florida domestic violence laws, the state legislature made it a point to include a very explicit statement concerning the role of the court in cases of battery/domestic violence. The message sent by the legislature to the courts included that the safety of the victim, the children or any other person that may be endangered by the felony act should be the first priority of the court and its officers. That said, it also emphasized that extreme caution should be exercised before releasing any defendants accused of these crimes.

Under Florida law, the term domestic violence covers any assault, battery, sexual assault, stalking, kidnapping, false imprisonment, or any intentional criminal infliction of physical harm or death on a family or household member. The term household member refers to those who currently or formerly live together, or family, those related through marriage or blood.

If you are Wrongly Accused

Battery/domestic violence is a very serious charge, and should not be taken lightly. In most states, and especially in Florida, if convicted, you could be looking at a prison sentence, and a charge that will follow you the rest of your life. If you believe that you have been wrongly accused, you must take the necessary steps to defend yourself and clear your name. It starts with hiring the right attorney.

It is extremely important that you cooperate fully with the police and court. It is understandable that you may be frightened by the whole ordeal, but the very best thing you can do is to be honest and cooperative, so that you can get the chance to tell your side of the story. Losing your temper, or being obstructive, can only serve to hurt your case in the long run.

What a Criminal Defense Attorney can do

While you may believe that you are innocent and feel like you can defend yourself against these charges, it is advisable not to do so. At times like these, it is always best to hire a criminal defense attorney to help you plead your case. A knowledgeable attorney can provide you with experienced legal advice, and will help you take the steps necessary to prove your innocence against all charges in court. Even if you have not been expressly charged, you will need an attorney’s advice while dealing with the police and the prosecution.

An attorney can call witnesses on your behalf and present any counter-evidence that can be brought against your accuser. Over the past few decades, the laws concerning felony battery/domestic violence have tightened, and an unfortunate by-product of that has been that the number of innocent people accused of such crimes has nearly tripled in recent years. To properly defend against such a sensitive issue, the attorney will need to know everything, including prior incidents, convictions, drug or alcohol use, and marital issues in order to mount a successful defense.

What A Victim of Domestic Violence Can Do

Domestic violence is a very personal and painful experience, and it requires handling by trained professionals who are experienced and compassionate. The first step in a domestic violence case is to protect the victim from any more abuse. This can be done with court orders that can be obtained with the help of an attorney who specializes in family law.

Domestic violence law in California defines domestic violence as the following:

o Threats of injury by hitting or using a weapon
o Actual physical behavior that hurts the person
o Forced sexual behavior and harassment
o Psychological abuse that deflates a person’s self esteem or attempts to control the person
o Stalking or cyberstalking

If any of these actions occur, law allows a victim to request a protective order from the court to stop the abusive behavior. These protective orders can be sought for an abusive spouse, but they can also be obtained against a sexual partner, family member or roommate. It is best to request one of these orders as soon as possible after the abuse occurs, since courts are more likely to provide orders on an emergency basis in these cases. However, a delay in reporting the abuse should never be a reason for not reporting it at all, since domestic violence law allows victims to file for protection at any time in the process.

A protective order in these cases usually consists of a temporary restraining order or TRO. These orders will prohibit the other person from approaching the victim at home, at work or over the phone. The order may also force the spouse to go into counseling and prohibit him from purchasing a firearm. The order may even extend to children and others living in the home if their safety is also at stake. If the person violates the restraining order in any way, the police can be called and an arrest can be made.

According to law, these restraining orders are registered in a statewide database. This makes it much easier to track and respond to abusers who choose to violate those orders in any way. If someone has a need to seek a restraining order, the best approach is to contact an attorney who is well versed in domestic violence law to help with the process. This professional can also help to ensure that the order is enforced and that appropriate measures are taken if it is violated.

Domestic violence is a painful situation that happens far too often. However, there are steps that can be taken to ensure that abuse of any kind that is inflicted on a victim is stopped once and for all. Under law, a restraining order can be placed to protect the victim and the rest of the family if necessary. If you have been the victim of any sort of domestic abuse, contact a family law attorney right away to find out what your rights are and how to make the violence stop.

Things to Know About Domestic Violence Laws in the US

In every household there comes a time that an intense verbal argument occurs for a number of reasons: jealousy, financial problems, sibling rivalry, etc. However, sometimes people may physically assault a family member because they cannot control their anger, want to assert control or may have been verbally provoked. In so doing, the aggressor has committed Domestic Violence.

Whenever such serious matters occur, you may think of seeking outside help either by calling the police or by consulting an attorney. It is preferable to discuss the issue with an experienced legal professional first, since you may have trouble handling the legal ramifications that may ensue following the crime’s disclosure.

The aim of this article is to provide an overview of the most important legal aspects of Domestic Abuse, in a simplified and accessible way and to provide a starting point for more specialized study.

1. What is Domestic Violence?

Any person who physically abused a family or household member has committed the crime of Domestic Violence. Domestic assault is a distinctive and more serious case than Assault and Battery -which involves strangers- and is treated accordingly.

2. Domestic assault can be difficult to prove.

The easiest way to identify an abused victim is by looking for signs of assault on the body (scratches, bruises, etc.). In the absence of such evidence, eye witness’s testimonies are valuable, but are not always available. What adds complexity when evidence is inconclusive, is that it can be hard to prove the crime or ascertain who the instigator was (both parties can claim to have been abused or acting in self-defense and the aggressor could deny the charge).

3. The severity of the assault, the victim and the aggressor’s medical history and potential addictions are taken into account for the sentence.

Simply put, an aggressor who slapped his spouse will be punished more leniently, than one who punched and kicked her. If a child was abused the law is more severe. A person with addictions (a drug-user or an alcoholic), or mental disorders may also be required to undertake therapy.

4. If domestic abuse is reported, it can severely disrupt family relations.

Domestic assault is a serious criminal charge, which means that if the authorities find out about the crime, they are obligated to take legal action, whether the victim intents to or not. The state laws of Virginia dictate that the authorities can issue a no-contact (protective) order, effectively prohibiting any form of communication between the aggressor, the victim and the rest of the family.

5. First time offenders can have their case dismissed or may be judged more leniently.

The guilty party can have their sentence dismissed, if they have never committed a crime before. It is also possible that the state offers a plea bargain to the accused. If the abuser admits guilt before the case goes to court, the sentence can be more lenient.

6. The alleged abuser’s and the accuser’s personality and habits play an important role in court.

A person with a toxic and abusive personality, will have a harder time convincing the court about his innocence. On the other hand, the accuser may have an ulterior motive or may be a habitual liar. All of the above aspects come into play when the case is tried.

7. It’s advisable for both parties to avoid contact after the crime has been reported.

Whether you are the accuser or the perpetrator it is preferable to refrain from communicating between each other, as any form of contact could have a detrimental effect to your case, especially if a protective order is in effect.

Conclusion

Domestic Violence can be a complex and challenging crime to handle. Whether you decide to press charges against an abuser, or think you have been wrongfully accused, you should always consult with an experienced criminal law attorney.

Further reading

For more information on US Domestic Violence laws, visit the FindLaw site.

For an example of how States deal with Domestic Violence you can look at Code of Virginia ยง18.2-57 and the State’s Attorney General’s site.

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