Domestic Violence domestic violence and abuse domestic assault

It might surprise you as to what it is and what a low threshold exists to make the slightest provocation punishable by the law. Any violence made against another who is or was involved in a past or present romantic relationship with another can be prosecuted.

That is is broad. But simply put- Under Alabama law, any violence, directed at another could qualify as domestic violence. So cooler heads should prevail. This includes not just physical injury to another but should the circumstances show that violence has take place, meaning the room was destroyed, or someone put their hand through a door could be construed by the investigating officer as evidence that domestic violence has taken place.

Domestic violence is one of the few crimes in Tennessee that requires the police to investigate the incident scene and determine who was the victim and who was the perpetrator. That means that often the police will use the slightest of evidence to arrest someone even though the police did not see the incident happen. Often times the police will arrest both parties and let the judge “sort it out.”

What does this mean?

You need to very careful about accusations of domestic violence. Be sure and talk with me about how to avoid claims of domestic violence because the mere accusation of domestic violence can taint the entire domestic case and cause and individual to spend substantial time in jail.

Additionally, and often more importantly, it is often used to obtain an advantage in a custody dispute as there exists a presumption that the victim is more suitable to receive custody than the perpetrator.

This is one time you need good legal advice and you need to know that you are NOT ALONE!!!

It may come as a surprise to many but children can also be the perpetrator of domestic violence as well a victim. I am often asked what is a parent to do when the child has assaulted a parent. Routine discipline of a child by a parent is not domestic violence and is recognized by the law so long is it is “reasonable”. That is why parents are not usually accused of domestic violence when children are involve. It is when that discipline is unreasonable that the law becomes involved.

This is directed to a different problem- that of the child who assaults a parent. We don’t usually think that children would beat-up a parent, but in divorce cases, when children assault a parent it is out of frustration or anger with the parent who is assaulted, or because they have been manipulated by the absent parent to retaliate.

What is an assaulted parent to do? In this case my advice is to report the assault to the police and at least make a police report. It is a sad fact that adults are held responsible in divorce court, but children are held responsible in juvenile court. You don’t have to prosecute the child in juvenile court, but by at least making the report you secure a record of the act by making the report. If necessary and the child continues to be unruly then the child can be controlled by the juvenile court. I have seen instances where a child was being manipulated by the absent parent and this report and threat of subsequent prosecution was the only thing that kept the child from becoming uncontrollable. From a divorce stand point, to not report it to the police sets up the allegation that the assaulted parent can’t control the child. It is unwise to abandoned the child to the absent parent, (don’t just take the child to the other parent) because it sets the stage for the absent parent to say just that. It can also color the child’s subsequent acts which the divorce court may weigh on the issue of custody. You don’t abandoned your duty to the child just because you and your spouse can not get along and are separating. The Court will make the decision about custody on what is best for the child. The fact that the child assaulted one parent will be a fact that the court needs to know about. What were the circumstances and what did parent do to diffuse the situation? Was the parent reasonable or unreasonable in controlling the child? Having the police report at least documents the incident and what the child did. It also keeps the child from later characterizing the incident as one where the parent assaulted the child.

Preserving the evidence can then be used in the custody case. The further you get from the incident the more likelihood will be that the incident will be mischaracterized at a later date.

Children can be manipulated and they can become angry at the circumstances they are in. The point is, don’t let your spouse turn the acts of the child against you without knowing what the implications may be. Parents are still the adults and they are charged with their duties to the child. If your child assaulted another adult would they not be reported to the Police?

You are not alone!

When you are involved in a heated argument with your spouse, keep your arguments low key, without profanity and physically retreat from any confrontation. However, there is no substitute for making an appointment. Call me at 931-526-6033 for an appointment.

In a domestic violence, law enforcement officers have authority to make warrantless arrests in several situations. These include situations where the officers conclude that domestic violence has occurred. When a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer shall value weight each complaint separately to determine who was the primary aggressor. If an officer determines that one person was the primary aggressor, they will not arrest the other person alleged to have committed domestic violence.

Law-enforcement officers shall consider the following:

Prior complaints of domestic violence.

Are the Stories consistent with the injuries inflicted on each person.

The likelihood of future injury to each person.

Whether one of the persons acted in self-defense.

Law-enforcement officers are not to threaten or otherwise suggest the possible arrest of all parties to discourage the request for intervention by law enforcement or to base the decision to arrest on either of the following:

Specific consent or requests of the victim.

The officers perception of the willingness of a victim or witness to the domestic violence to testify or otherwise participate in a judicial proceeding.

In other words to determine who is the primary physical aggression police officer may consider the following:

•  Are the injuries in the nature of self-defense or afflicted by another?
•  All the stories consistent with the injuries?
• In looking at the crime scene, whose property is destroyed?
• Who is in fear?
• Are there statements by children or others? Are they consistent?
• What is the relative physical size of the parties?
• Is there a history of abuse and 911 calls?
• What did the 911 call say?
• What was the type, use of, and who owned any of weapons used in the altercation?
• Who objects to the separation of the parties?

These are the clues which the officer is looking for. Therefore, if you know the officer is looking for these clues be sure to tell the officer who investigates your altercation about these clues in order that they may properly investigate the circumstances of the police call. Likewise, in order to clear yourself of a charge of domestic violence the police will need to know about these clues in a favorable light. The point is, the officer is looking for these clues to make an arrest.

If you have been accused of domestic violence, you NEED competent legal advice. Call Beth Shipley today at 931-526-6033 to arrange an appointment to discuss your case.

What you don’t know can hurt you...You are NOT alone!

What does a Domestic Violence Order Mean?

People who are arrested for acts involving domestic violence or who strikes, kicks, shoves, or touches a person subjecting him or her to physical contact may not be permitted bail until after an appearance before judge within 12 hours of their arrest. What this means is is that each person arrested will serve at least 12 hours in jail before being permitted bond. The court also issue a restraining order to prevent further domestic violence. The purpose of the statute is to assure victims of domestic violence the maximum protection from abuse and to provide a flexible and speedy remedy to discourage violence and harassment against family members. It also expands the ability of law enforcement to assist victims.

Abuse has been defined as an assault. This means any striking, shoving, hitting or otherwise unlawful touching or person subjecting them to physical contact. It also covers any “attempt” to commit an assault. It covers child abuse, harassment, kidnapping, or menacing, reckless endangerment, sexual abuse, stalking, theft, trespass, and unlawful imprisonment.

A person charged with domestic violence has the right to a hearing within 14 days. The defendant may be represented by counsel. The court may enter such temporary orders as it deems necessary to protect the plaintiff for the minor children from abuse or the immediate and present danger abuse the plaintiff or the minor children.

At the hearing the court may grant the following relief to the Plaintiff:

•  To enjoin the defendant from threating to commit or committing acts of abuse against the plaintiff or the minor children or any designated family or household member.
• Prohibit defendant from harassing, annoying, telephoning, contacting or otherwise communicating directly or indirectly with the plaintiff for the minor children.
•  Order the defendant to stay away from the residence, school, place of employment of the plaintiff or the minor children or any other person place frequented by the plaintiff or the minor children.
• Award temporary custody of any minor children of the parties.
• Enjoin the defendant from interfering with the plaintiff’s efforts to remove the children and direct law enforcement officers to accompany the plaintiff to remove the children as necessary to protect the plaintiff and the children from abuse.
• Enjoin the defendant from removing the minor children from the individual having legal custody of the minor children.
• Remove and exclude the defendant from the residence of the plaintiff regardless of the ownership of the residence.
• Direct law enforcement officers accompany the plaintiff residence of the parties to protect plaintiff or children from abuse.
• Or grant other relief as may be necessary to provide for the safety and welfare of the plaintiff or the minor children.
• Prohibited defendant from transferring, concealing, encumbering otherwise disposing of specified property mutually owned or leased by the parties.

As you can see the powers of the court are directed to controlling the domestic relationship between the parties. Running afoul of the the domestic violence law can have far-reaching consequences beyond the moment and effect any pending or future divorce proceeding filed.

You will need to contact someone experienced in handling domestic relations and domestic violence cases.  Please call Beth at 931-526-6033 to discuss the specifics of your case and avoid the trouble a domestic violence charge may bring.