Domestic Violence Carpenter Law Firm, P.C. Attorneys Albuquerque New Mexico

Domestic Violence

Before the 1980s, police generally didn’t interfere in domestic disputes and the parties were left to work out their difficulties. Abusers rarely faced any criminal or civil charges, and victims had few legal options and resources.

That’s not the case anymore. Recent laws, especially the Violence Against Women Act passed in 1994, are aggressive and law enforcement officials are much more involved.
The U.S. Department of Justice says that each year approximately 960,000 incidents of abuse occur against a current or former spouse or partner. But the Commonwealth Fund, a private research center on health and social issues, says it’s more like 3.9 million. It’s a difficult crime to track because state and local law enforcement agencies don’t always report domestic abuse the same way. And many incidents of domestic violence are never reported at all.

The Basics
Domestic violence isn’t just physical. It also covers the threats, emotional abuse, harassment and stalking that a spouse, partner or date use to control someone else’s behavior. The abuse frequently occurs in predictable patterns as part of a cycle of violence in which the behavior escalates, erupts and then mellows into apologies. It can be directed against anyone, from children to current and former partners, roommates, even parents.

Research reveals that domestic abuse crosses all racial, ethnic, religious and economic lines. It also occurs in same-sex relationships.

Although both men and women can be victims of domestic violence, an estimated 90 percent to 95 percent of domestic violence victims are women, says the Department of Justice. Women who are 16 to 24 are most at risk. Studies also show that women face the greatest danger immediately after they leave an abusive relationship.

Domestic violence is a crime in all 50 states. Most domestic abuse laws are in place at the state and local levels, and there are some federal laws as well. The Violence Against Women Act makes it a federal crime for a convicted abuser to cross state lines to continue to harass or abuse a spouse or partner, or to violate a restraining order.

It’s also a federal crime — and usually a state crime — for an abuser who has a restraining order to purchase or possess firearms and ammunition. Police officers used to avoid arresting anyone involved in a domestic dispute, instead trying to calm down both sides. Neighbors, friends and relatives also used to fear that calling the police would only makes things worse for the victim. However, research shows that arrests can prevent subsequent acts of violence and help more often than not. That’s why many states have enacted laws that give police the right to arrest suspected abusers even if the victim doesn’t file charges. In addition to cooperating with the prosecution of criminal charges, the victim can also file civil charges. Victims of domestic violence are often economically hurt in addition to the physical and emotional battering. And victims aren’t the only ones financially impaired. The Bureau of National Affairs says that domestic violence costs employers $3 billion to $5 billion a year.

Domestic violence is violent conduct between:

Spouses
Family members
Those residing in the same household that causes or threatens injury.

Where the violence is between adults, a state generally won’t get involved unless the conduct becomes criminal in nature. Most states have a list of criminal statutes that, if violated, qualify as domestic violence if the victim is a family member or lives with the person violating the statute.
The legal consequences of domestic violence vary from state to state.

In general, courts are authorized at a first (or “emergency”) hearing to act on a temporary basis. For example, where there is reasonable suspicion that domestic violence has taken place, the court may temporarily restrain the person accused of domestic violence from contact with the victim.
Where appropriate, the court will restrain the person accused from contact with the children of the victim or the parties.

Temporary restraints may require the accused person to move out of the shared residence. These restraints may also bar contact at the workplace or school as well as the residence, heaping a substantial burden on the person accused of domestic violence.

Shortly following a first or emergency hearing, a court must hold a full hearing or a trial to determine whether or not domestic violence occurred.

If the court decides there was domestic violence, the judge can offer a wide range of remedies, which differ from state to state. These remedies may include:

Permanent restraints
Award of money damages
Liability for child or spousal support
Orders regarding child custody and visitation
Additionally, if a court finds someone to have been violent, the court may refer the matter to law enforcement for criminal prosecution.
Most states have shelters to house victims of domestic violence.
Many police departments intervene aggressively in domestic violence situations to encourage the victim to bring criminal and civil charges against the abuser.

Frequently Asked Questions

How can I protect myself from a husband who abuses me?
My estranged husband keeps threatening to break into my apartment. Is he correct when he says he won’t be arrested because we’re still married?
My husband abuses me and isn’t a U.S. citizen. Will he be deported if I bring charges against him?
Can I file a domestic violence case against my abusive ex-fiance?
Do I have a civil rights case against my abuser?
I have a protection order against my ex-husband, but he continues to call me and harass me. What can I do?

Q: How can I protect myself from a husband who abuses me? My friend told me to go to the police, and someone else told me to hire a lawyer. What are my options and how do I best protect myself and my children from this abusive person?

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A: You may have several options. Most states have both criminal and civil domestic violence laws. You could contact the police to report the abuse. Your husband will likely be arrested and charged. Depending on the outcome of the court hearings and whether he is tried and found guilty, he may be put in jail. The judge will likely order a temporary protection order that prevents him from contacting you, and possibly the children.

Once you notify the authorities of the abuse, they usually have complete control over whether your husband will be prosecuted or not.

Some states have laws that allow you to file for a protection order without contacting the police. A civil protection order will restrain your husband from contacting you, and maybe your children, and will give you temporary custody of your children.
It’s important to contact a family lawyer in your area to find out which laws apply to your situation.

Q: My estranged husband keeps threatening to break into my apartment. Is he correct when he says he won’t be arrested because we’re still married?

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A: Many states have some type of law that neither spouse can be excluded from the other’s separate residence. But several of those states don’t apply the law where a crime has been committed (such as trespass or burglary). Depending on where you live, your husband may be charged with trespassing and/or burglary if he enters your apartment without your permission.

Q: My husband abuses me and isn’t a U.S. citizen. Will he be deported if I bring charges against him?

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A: The Illegal Immigration Reform and Immigrant Responsibility Act allows for deportation of non-citizens for domestic violence, child abuse, child neglect and abandonment, violation of a protective order and stalking.

Keep in mind that deportation can affect your ability to receive and/or get alimony and child support. It will be very difficult, if not impossible, to collect support from a spouse who has been deported to another country.

It is very important for you to contact a qualified lawyer in your area to advise you on how to proceed on your domestic violence matter, since it is trickier than the normal situation.

Q: Can I file a domestic violence case against my abusive ex-fiance?

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A: You may want to file a civil domestic violence petition with the hopes of obtaining a civil protection order restraining your ex-fiance from contacting you. The problem, however, is that each state with a civil domestic violence statute has its own definition of what constitutes a “household” or “family member” for purposes of bringing a domestic violence action. Depending on how these are defined in your state, you may not be considered a “household member” or “family member” to your ex-fiancé.
But even if your state doesn’t include a fiancé under the domestic violence laws, he’ll still be subject to the normal laws that prohibit violence.

Q: Do I have a civil rights case against my abuser?

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A: Several years ago, domestic violence litigation branched out into federal courts when the “Violence Against Women Act” was enacted. Under this Act, you could bring a civil law suit against an attacker where the violence was gender motivated. However, on May 15, 2000, the United State Supreme Court declared this part of the Act unconstitutional, and a federal civil remedy against your abuser is no longer available.
Laws on domestic violence vary from state to state. A local family lawyer can tell you about the laws where you live.

Q: I have a protection order against my ex-husband, but he continues to call me and harass me. What can I do?

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A: The police have a responsibility and duty to enforce a protective order. If your ex-husband is violating that order, he should be arrested. Violation of the order will be either a contempt of court, or its own criminal act. If it is a contempt of court, you’ll want the police report to assist you in bringing a contempt charge. If it is a criminal act, you’ll want the police to know about the problem so they can enforce the law. If you continue to have difficulties with your local police, you may want to discuss your situation with an attorney and file something with the court

Getting Help
It’s a myth to believe that victims of abuse aren’t emotionally strong enough to leave their abusive situations or don’t really want to. Most victims do leave or try to leave repeatedly, but are forced back by their partners because of economic reasons, threats or fear for their children’s safety, says the American Bar Association’s Commission on Domestic Violence.

That’s why more shelters and legal centers are now available. If you or a friend, relative or neighbor is in danger of domestic abuse, experts suggest planning for emergencies. Set aside money, spare keys, copies of important documents such as passports, bank account information, insurance papers and birth certificates. Leave them with a trusted friend or relative. Learn crisis hotline numbers to call for help and legal advice.

The first legal step against an abuser is to file for a restraining order. If someone is in immediate danger, he or she can get an emergency protective order, also called a temporary restraining order. This prohibits the abuser from making any contact with the victim. The accused abuser is not allowed to come to the victim’s home, work, school, etc. To get an emergency protective order, call the local police. Law enforcement officials can usually obtain them after regular court hours. Temporary restraining orders usually last a few days. To apply for a more permanent one, the person needs to go to court to fill out paperwork. At that time, he or she will need to write an affidavit, describing the incidents of abuse or stalking. The person needs as much identifying information about the accused as possible, such as license-plate number, date of birth, Social Security number and work and home addresses. The court will also ask if this person has a license to own a gun.

Adults and sometimes minors can usually petition for a restraining order without hiring an attorney. And some states, such as New Hampshire, won’t even charge a court fee.

What’s Next?
A full hearing usually occurs within the next 10 to 14 days. The victim has to testify before the judge, explaining the need for a permanent restraining order. The judge must be convinced by evidence, such as police reports, photographs, medical records and sometimes other witnesses.
The person who the restraining order is filed against must be notified by the court and asked to attend the hearing to present his or her side of the story. However, if the alleged abuser doesn’t show up, the court in most states will still grant the restraining order.

State regulations differ but generally restraining orders last anywhere from three months to three years. During the hearing, the judge can also grant child custody and visitation rights, as well as award monetary damages. Since restraining orders are considered a civil matter, the alleged abuser may also be prosecuted in criminal court for charges such as assault and battery.
Once someone gets a restraining order issued, the court or the victim must call the local police department to tell them where the abuser is restricted from going and enter the information into local law enforcement computers. A restraining order issued by any state or Indian tribal government is valid anywhere in the United States.

Restraining orders don’t always work, but they're an important legal tool in domestic violence and stalking cases. They give the criminal justice system another means to convict the abuser. Violations of restraining orders are usually considered a criminal offense. Penalties vary by state, but most are considered misdemeanors. Sentences may require counseling, paying for the victim’s attorney fees, jail time, community service and fines.

There are many free legal services available for victims of abuse. To find out more, call your local legal aid office. Or call the National Domestic Violence hotline for help: 1-800-799-SAFE (7233).

Web links:
National Coalition Against Domestic Violence
Department of Justice Violence Against Women Office
National Center for Victims of Crimes
American Bar Association Commission on Domestic Violence