How Do You Prove Domestic Violence in an Order of Protection Hearing or Custody Case?
Domestic violence is an uncomfortable topic, but it is very important to talk about. It often comes up in family law cases, but the concept can be confusing when it comes to this area of the law. In family law, there are a couple of places where domestic violence tends to come up most frequently.
There can be a criminal charge for domestic violence, a civil order of protection or order against harassment for domestic violence, or you are filing in the family court with regards to a custody or divorce case concerning domestic violence. Things can become confusing because each of these will have a different burden of proof and different things that you will have to show.
When you are describing or alleging domestic violence in a petition for an order of protection, it will look different from how it might be written when you are going in front of a family law judge in a divorce or custody case.
What Does It Take to Get an Order of Protection?
To get one of these orders, you will have to meet certain criteria. The relationship between the person who receives the order of protection and the person on whom the order of protection is places need to have a certain relationship. They will need to be married, formerly married, live together, have or be having a child together, or the alleged victim will need to be related by blood. In some cases, you will see parents get an order of protection on behalf of their child against the other parent.
If someone else is living in the home with your child, you could get an order of protection against them, as well. For example, let’s say that your child is living in a home with your ex and her new boyfriend. You could get an order of protection for your child against that new boyfriend.
The burden of proof for an order of protection is different from that of criminal law. In criminal law, to be convicted of domestic violence, the state has to prove beyond a reasonable doubt that an act of domestic violence has occurred. This is not the case in an order of protection hearing. In this type of hearing, you do not have to prove beyond a reasonable doubt that domestic violence occurred. Instead, you need to show proof by a preponderance of evidence that shows that it’s more likely than not that the violence occurred.
What Qualifies as Domestic Violence?
There are certain things that qualify as domestic violence according to the criminal code in Arizona. It defines what constitutes domestic violence. This is a large list and includes the sexual assault of a minor, negligent homicide, second-degree murder, first-degree murder, endangerment, threatening or intimidation, assault, aggravated assault, custodial interference, unlawful imprisonment, kidnapping, sexual assault, unlawful distribution of images, criminal trespass in the first, second, or third-degree, electronic communication to terrify, threaten or harass, and criminal damage. It will also include interfering with judicial proceedings, harassment, aggravated harassment, stalking, misconduct involving weapons in an airport, aggravated violence, child or vulnerable adult abuse, cruel negligent abandonment of an animal with injury, cruel mistreatment of an animal, and interfering with someone’s use or ability to use a telephone in an emergency. Let’s look at a few examples.
Criminal trespass would be when someone comes onto your property without being authorized to be there. This happens frequently with divorce cases. Criminal damage would be when the person damages your property. This could be property in your home, your vehicle, etc. This also happens in many family law cases.
When you are filling out the form for the order of protection, it is a good idea to cite the statute you are relying on for the case.
Let’s look at an example. Let’s say that you were in an argument with your ex and things start to get out of hand. You want to leave, but you aren’t allowed, and they take away your phone so you can’t call for help. You can relate these things when you are trying to get an order of protection, but sometimes it’s hard to remember things other than being scared. By citing the statute that applies to what happened to you, and then explaining the specifics, it shows how you qualify legally for the order of protection. This will help to make it as easy as possible to get an order of protection.
The Order of Protection
One of the good things about getting an order of protection is that you do not have to wait for the police to arrest someone and for the DA to decide to press charges. You can go to get an order on your own behalf to protect yourself. The order of protection will prohibit the defendant from coming near you, your property, or your kid’s school.
You can get an order of protection at any courthouse in the state of Arizona. They have the forms that you need, but you do need to be sure that you are filling them out properly. If they are not filled out correctly, you might not get the order or it might not hold up. After you get the order of protection, it is served on the other party by the sheriff’s department. The other party can then contest the order and request a hearing. When there is a hearing, the burden is on you to prove that it happened and that you have alleged it correctly.
Getting Help on Moving Forward
It can sometimes be difficult to know what to do with your family law case when you have filed for an order of protection. How should you proceed? This is not something you want to try to handle on your own. Instead, take the time to find and meet with an experienced family law attorney that can help you with your case.
