FREE CONSULTATION • CALL US 24 / 7 212-994-7777

Domestic Violence

Domestic Violence

The term domestic violence refers to a specific type of violence between adults in a close relationship, especially spouses. Domestic violence can be either physical or psychological. Psychological domestic violence include threats and degrading language.

In most states, domestic abuse includes any conduct that causes or threatens to cause injury between family members, spouses, and/or residents of the same household. Domestic violence can also be described as behavior used by one person in a relationship used to control the other person in the relationship. The behavior may happen all of the time, or only occasionally, either can constitute domestic violence.

Domestic violence can include both physical and sexual abuse. These violent acts are labeled as criminal and the batterer can be prosecuted for committing them. The acts are a means of controlling the victim's thoughts, feelings, and behavior. The violence may increase in frequency and severity over some time. Emotional abuse and insulting words are part of the abuse pattern but are not considered to be criminal acts. The wounds from these injuries, however, can be more difficult to heal.

Some specific examples of domestic violence include:

  • Emotional abuse such as name calling or put downs;
  • Preventing a partner from contacting their family or friends;
  • Stopping a partner from obtaining or keeping a job;
  • Actual or threatened physical harm;
  • Stalking or intimidation;
  • Harassment; and
  • Economic and sexual abuse.

It is imperative that if you are facing a domestic violence emergency, and fear for your safety, that you contact 911 or your local police. Unfortunately domestic violence is a common occurrence, and emergency services are prepared to intervene. There are local domestic violence hotlines that provide assistance as well.

Additionally, domestic violence shelters exist to provide safety to those trying to leave a violent situation. However, such shelters generally only accept female victims and their children, meaning male victims of domestic violence may not receive the help they need.

Protecting Yourself from Domestic Violence

First and foremost, it is not the victim's responsibility to protect themselves from a violent person. It is the offender's responsibility to avoid abusive behavior. That being said, if you are facing domestic abuse, there are some steps you can take to take care of yourself and prevent further harm from being inflicted. Some of these safety measures can include but are not limited to:

  • Identify safe spaces both inside and outside of your home, in which you can call for help or escape to;
  • If you are able, notify your friends and family that you are in danger and need immediate help;
  • Compile and memorize a list of emergency contacts; and
  • Consider obtaining a restraining or protective order.

A restraining order is sometimes referred to as a protective order in some states, and is a court order restricting one person from harming another. Restraining orders typically require the offending individual to do, or refrain from doing, a specific action. An example of this would be requiring the abuser to stay fifteen feet away from the victim, or cease all contact.

Such orders are typically easier to obtain if you have a police report. In most states, domestic violence calls have a mandatory arrest requirement. What this means is that if the police are called to a scene they must arrest at least one person involved in the dispute.

The police are to listen to each person's account of the incident, document any injuries, and ultimately decide right then and there as to which person is the actual abuser or attacker. As they must arrest at least one person involved, it is important to be prepared and show any evidence you have about your abuser's history of domestic violence.

Many people mistakenly believe that domestic violence laws only protect a wife from being physically assaulted by her husband. This is untrue; domestic violence laws have expanded to protect other groups of people. Such groups include but may not be limited to:

  • Spouses of any gender;
  • Significant others of any gender, such as boyfriends and girlfriends;
  • Elders being abused by their family members; and
  • Roommates abusing each other.

Domestic Violence Claims Handling

There are three courts in which a domestic violence claim may be deliberated:

    • Criminal Court: In a criminal court, the abuser is prosecuted by the state. The abuser would need to be arrested for the case to be tried in criminal court;
    • Civil Court: A civil court would handle a lawsuit regarding protective order violations as well as money damages. If the abuser was not arrested, or if the victim was safely removed from the situation, the case may go directly to civil court where a restraining order may be obtained; and/or
  • Divorce or Family Court: If the domestic violence has occurred in connection with child custody and visitation issues, a divorce or family court would likely resolve the claim. Many states allow divorce or family courts to handle domestic violence claims including restraining orders.

As previously mentioned, one of the first steps you should take if you are facing domestic violence is to contact your local state district attorney, or the police. They will provide you with guidance prior to a required court hearing, where you will have the burden of proving that you were abused or threatened with abuse. To obtain a protective order, you will generally go to court and they will issue an order signed by the judge in order to protect you from further domestic violence.

If the order is violated, then the abuser will likely face serious consequences. Violating an order is considered to be a separate crime, meaning the abuser will likely face charges for both their actions as well as the act of violating the order. The legal consequences of domestic violence on its own can include but are not limited to:

  • Criminal penalties such as jail or prison time and a fine;
  • Damages paid out to the victim;
  • Rehabilitation courses;
  • Revocation or suspension of custodial rights; and
  • Loss of various other rights, such as the right to own a firearm. 

Domestic Violence as a Felony

Domestic violence refers to a single or repeated act of abuse occurring within a home setting. Although domestic violence cases typically involve a violent act committed by one spouse against the other, the term can apply to any situation in which a member of a household is subjected to abusive conduct, such as a relative, a partner, or even a roommate.

This can include both physical acts of abuse (e.g., kicking, hitting, scratching, etc.), and non-physical abusive behavior (e.g., threats, offensive language, and emotional or psychological manipulation).

In addition, domestic violence is an issue that can be raised in either civil or criminal cases. For instance, it often comes up during different types of family law proceedings like divorce, legal separation, and/or child custody. Such matters are generally held in a civil court and are brought by private parties.

On the other hand, domestic violence can also lead to criminal charges and a criminal case. In this instance, the state or government will be the party raising the issue and filing an action against the defendant.

The reason why domestic violence can become a criminal matter is because the defendant's violent acts frequently result in cyclical or recurring incidents of assault and battery; both of which are criminal offenses. The more times a defendant is charged or convicted, the more likely it is that their actions will lead to a felony offense.

Domestic Violence as a Misdemeanor

Domestic violence may be classified as a misdemeanor when it involves a party who uses, attempts to use, or threatens to use physical force against another member of their household. Misdemeanor charges are usually the result of an assault or battery crime.

For example, assault occurs when a person intentionally threatens another individual to the extent that the individual becomes reasonably apprehensive that they are in imminent danger of bodily harm. Thus, a defendant may have committed assault if they scare or threaten someone to the level where the victim believes actual harm will be inflicted on them very soon.

As for the crime of battery, this refers to when a person uses physical force against another that results in offensive or harmful contact and is done without their permission.

One other instance in which an act of domestic violence may qualify as a misdemeanor is when a defendant emotionally abuses their victim. Emotional abuse may consist of verbal abuse, criticism, manipulation, screaming, and making remarks that are upsetting or belittling.

Factors That May Convert a Misdemeanor Domestic Violence into a Felony Charge

There are several factors that may convert misdemeanor domestic violence into a felony charge. The most common ways this can happen is if the abuse becomes more frequent, the victim sustains more severe injuries, or the defendant has already been charged with misdemeanor domestic violence.

Some other ways domestic violence can lead to criminal felony charges is when one or more of the following factors is present during the incident:

  • Use of a weapon;
  • Severe bodily harm or death;
  • Ongoing patterns of abuse;
  • If alcohol or drugs were involved;
  • If the defendant violated a restraining order;
  • If a child or minor witnessed the abusive conduct; and/or
  • The defendant is a repeat offender.

However, it should be noted that these factors can change and there may be additional elements that constitute a felony depending on the laws of the jurisdiction and circumstances of the case.

Potential Penalties for Felony Domestic Violence

A person who is convicted of domestic violence felony charges can face very serious legal consequences. Aside from the standard penalties, a defendant may also lose certain privileges if they are convicted of felony domestic violence like loss of child custody or visitation rights, inability to get a job or a house, and loss of gun ownership.

Also, the type of punishment a defendant receives will vary by jurisdiction and the circumstances of their case. For example, the punishment for a first offense domestic violence felony is less severe than a defendant who has been charged and convicted of multiple instances of domestic violence felony.

As a general rule of thumb, the more repeat offenses the defendant is convicted of, the longer and more serious of a punishment they can expect to receive. For instance, while a first-time offense may result in temporary loss of child visitation rights, repeated offenses could eventually lead to permanent severance of all parental rights.

Can a Domestic Violence Situation End Up in Civil Court?

Domestic violence cases can be filed in both criminal and civil court. One will not prohibit the other from being filed since criminal and civil courts are considered two separate sovereigns.

In a criminal proceeding, a local prosecutor will decide whether to file charges against an abuser. The purpose of a criminal proceeding is to punish and deter the defendant from committing acts of domestic violence in the future.

In a civil proceeding, however, it is the victim who will bring a case against their abuser (usually an action based in tort law). The reason why the victim may also want to consider filing a civil case is so that they can recover damages for any physical or emotional losses caused by the defendant. They may request damages for items, such as medical bills or lost wages, or potentially obtain an injunction to restrain their abuser from coming near them.

What Should I Do If I am a Victim of Domestic Violence?

The first step a victim of domestic violence should take is to remove themselves from the situation if possible. This may mean temporarily staying with a friend or family member, seeking shelter at a safe house, or finding ways to avoid the abuser.

Once the victim reaches a place where they feel safe from harm, they should call the police and report the incident. Filing a police report allows law enforcement to arrest and potentially charge the abuser.

If the abuser is charged, the victim should be ready to cooperate in a criminal investigation regarding the incident. This may include having to answer questions posed by the police or providing evidence of injuries caused by the abuser.

If the police determine there is enough evidence to support a case, they will then submit any findings to the local district attorney or prosecutor's office. The prosecutor will review the evidence and make a decision as to whether to file criminal charges against the abuser.

A criminal case will require more cooperation and a deeper investigation. As such, the victim should be prepared to supply testimony, medical reports demonstrating prior injuries if possible, and will most likely need to undergo a new medical examination.

If the prosecutor decides not to file charges or the criminal case is unsuccessful, the victim may still file a private civil action to potentially recover damages for any harm done.

How Does Domestic Abuse Affect the Victim?

Domestic abuse can also result in various legal effects on the victim or victims. A single instance of domestic abuse can often have dramatic effects on the lives of those involved in the incident. The assistance of a lawyer may sometimes be required to help the victim deal with the legal issues that may result after a domestic abuse incident.      

One of the main effects is a change in child custody and visitation orders. The defendant may lose their child custody rights, and they may be prohibited from visiting the child. While this is often for the protection of the child, it also means that the child will not be able to contact their parent for some period of time, or even permanently.

Also, domestic abuse often results in the victims being relocated out of state or to a shelter home, again for the protection of the victim. This is common if the domestic abuse involves instances of harassment or stalking, or if the defendant has previously violated a restraining order. In some cases the defendant may be liable for the costs involved in physically relocating the victim.

Lastly, domestic abuse can often result in severe emotional trauma for the victim, as well as witnesses to the violent conduct. A judge may then recommend that the victim and/or witnesses attend counseling or rehabilitation sessions. 

Protections and Remedies Available for Domestic Violence Victims

There are several types of protections and remedies available for domestic violence victims. Some of these include:

    • Restraining orders: These are temporary orders issued by a judge that require an abuser to maintain their distance from the victim. This may mean having to move out of a shared marital home or refraining from contacting the victim, until the order expires or a permanent injunction is issued.
    • Permanent injunctions: In contrast to restraining orders, permanent injunctions can last indefinitely. This means that the defendant will not be able to make contact or come near the victim again without facing legal consequences like an arrest or jail time.
    • Requests for modification of child custody, child visitation, and/or child or spousal support orders: A request for modification of any of these types of orders will usually be granted if a party is convicted for committing domestic violence. This is especially true when the offender is issued a prison sentence.
    • Civil lawsuits: As previously discussed, a victim may seek monetary damages by filing a civil lawsuit against their abuser in a civil court. 

How Can an Attorney Help with Domestic Violence Issues?

Domestic violence claims are very serious legal matters. Thus, you may want to consider hiring a local family lawyer if you want to file a civil action based on a domestic violence incident.

If you are a victim of domestic violence, you should consult with a skilled and knowledgeable family attorney as soon as possible. An experienced family law attorney can inform you of your legal rights and remedies, as well as assist in obtaining a restraining order and a divorce or legal separation.

Your attorney can help you prepare your case, gather evidence, and ensure that it is filed before your state's applicable statute of limitations expires. Your attorney can also represent you in court and assist you in recovering any damages that you are rightfully owed.  

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.