Family Law FAQ
What Kind of Behavior is Considered Domestic Violence?
There are state and federal statutes defining what constitutes domestic violence. Generally, it is when an individual causes bodily injury, threatens or causes fear of physical harm in another or abuses a child. The individual harmed is a family member or person residing in the household, or who used to reside in the household (this can be a spouse, cohabiting partner, child or other relative). Some states also include any individual with control over a child or elderly person as a family member under the domestic violence statute, the “family member” does not always have to reside in the same home.
Can a partner in a same-sex relationship commit domestic violence?
Many states include persons who are or were cohabitating within the meaning of domestic violence. Most states do not specifically refer to same-sex relationships in domestic violence statutes; in fact, a few states exclude same-gender couples. However, even though the law may be silent as to same-sex relationships, the courts tend to consider such relationships under the broad umbrella of “cohabitation.” Generally, the court determines whether two people are living with each other, as required by statute, on a case-by-case basis. The court may consider factors when making this determination, such as if there is a co-mingling of finances or joint ownership of property, how long the couple has had a relationship, if the couple has a conjugal relationship while living together and how the couple holds themselves out to the public (married, significant others, partners, etc.). The courts appear to use the same factors whether the cohabiting couple is same-sex or of the opposite-sex.
Are temporary restraining orders (TROs) and emergency protective orders (EPOs) available only when the abuser is a spouse?
Temporary restraining orders and emergency protective orders are most commonly issued in instances of domestic violence between married couples, often coupled with a divorce or separation. Courts grant such an order if there is evidence of ongoing abuse or a history of abuse in the relationship. Many states base TROs and EPOs on the Domestic Violence Act; this act is also used as statutory authority to protect cohabiting partners from domestic violence. Therefore, most jurisdictions allow a member of an unmarried cohabiting couple to file an order for protection. An issue may arise with TROs if the abusing partner is the legal owner of the property in which the victim of the abuse resides. Domestic violence protection, TROs and EPOs are extended to non-married victims in most, but not all, jurisdictions. Therefore, it is important to contact an attorney in your jurisdiction to find out about the laws and protections regarding domestic violence in your state and who may benefit from these laws.
How does domestic violence affect child custody?
A court determining child custody is looking for the best interests of the child. Evidence of domestic violence in the home or between the parents (or other family member by one of the parents) may be considered when making a custody determination. Even if the abuse was of a parent, partner or family member and not the child, it may be considered. The child may have witnessed the abuse, which may cause damage to the child, as well as a negative environment in which to live. Additionally, evidence that shows one parent to be abusive reflects negatively on that parent’s ability to raise a child and his or her fitness as a parent.
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J. Ogden Middleton II