Domestic violence means any criminal offense involving violence or physical harm with a cohabitant, including assault, a threat of violence or physical harm, or an attempt to commit a criminal offense involving violence or physical harm. Cohabitants refer to people living together as boyfriend/girlfriend, spouses, or the parents of a child. When we say domestic violence, we are talking about a criminal offense that involves a cohabitant. There can be domestic violence assault, domestic violence criminal mischief and domestic violence in the presence of children. Criminal mischief essentially means damaging property. For example, if you and your spouse got into an argument and you threw a plate, causing it to break, then that would be considered criminal mischief. If your children were present during that time, that would be considered domestic violence in the presence of children. I’d like to think of it as an enhancement; it’s more serious because of the familial relationship.
How Serious Are Domestic Violence Allegations In Utah?
In Utah, once the police show up to a domestic violence call, there is about a 95% chance that one person is going to go to jail. It’s almost an unwritten rule that if they have to go out there and get in the middle of your familial relationships, then someone is going to jail. It just seems that way; it’s not an official rule. When that person goes to jail, they don’t automatically get a bail or a bond like they would with other offenses, such as DUI or theft. A lot of times they have to wait there until they can be seen by a judge. They are prohibited from contacting the alleged victim, and they are not going to be able to reach them through the phones at the jail. If they go in on a Friday night, they might not see a judge until Monday morning. Even if they do get out of jail on Monday morning, the terms of the release will disallow them from having any contact with the alleged victim. That means that they won’t be allowed to enter the residence without the assistance of a police officer- not even to gather some clothes for work.
Are Orders Of Protection Automatically Placed In A Domestic Violence Case?
If charges are filed, part of the prosecutor’s duty is to contact the alleged victim or victims and see if they want the criminal court to enter an order of protection. An order of protection is not ordered automatically; it’s the prosecutor’s obligation to make contact with the victim and see what they want. If they want that order in place, then it could stay in place as long as the criminal court has jurisdiction over the case. Depending on the outcome of the case, that could be 12 to 18 months. I see those orders of protection being issued quite frequently because the victims are afraid and worried about their children, their health and their safety.
How Are Domestic Violence Charges Determined To Be Either A Misdemeanor Or A Felony?
There are different things that can make a charge a felony versus a misdemeanor. Aggravated assault, the use of a weapon, very serious injury, and criminal mischief resulting in over $2,500 worth of damage could all lead to felony charges. Another factor that’s taken into consideration is whether or not there are prior domestic violence convictions. For example, if you have an ongoing problem with one of your family members and you were charged and convicted with domestic violence a year ago, then your next domestic violence offense could be enhanced to a Class A misdemeanor. If you have another episode six months down the road, then that can be a felony. Basically, the determining factors are the classification of the charge, the seriousness of the damage involved and prior convictions.
Suing for Domestic Violence
Although for many years suing ones spouse was prohibited under spousal privilege, these days most states do allow one to sue your spouse, either while still married or afterwards. Ten states (Arizona, Delaware, Hawaii, Illinois, Iowa, Louisiana, Missouri, Ohio, Texas, Utah, and Wyoming) and Washington D.C. still do prohibit immediate family from suing one another. But even these states generally allow exceptions for “intentional torts,” or specific and purposeful acts of wrongdoing on the family member’s part. All of the typical behaviors which generally constitute domestic violence assault, battery, psychological abuse, etc… are almost certainly categorized as “intentional,” so you can likely sue in these states as well.
What Kind of Behavior can be Considered Domestic Violence?
There is no all-encapsulating definition of what constitutes domestic violence; every state defines it differently. But any of the following behavior:
• Slapping, punching, pulling hair or shoving
• Forced or coerced sexual acts or behavior such as unwanted fondling or intercourse, or jokes and insults aimed at sexuality
• Threats of abuse-threatening to hit, harm or use a weapon on another, or to tell others confidential information, and
• Psychological abuse-attacks on self-esteem, controlling or limiting another’s behavior, repeated insults and interrogation.
Why Should I Sue my Abuser?
Besides the obvious possible financial benefits, suing your abuser in tort can provide a sense of emotional relief and control. If you’ve missed work because of your abuse, you can receive lost wages and medical expenses, as well as general damages for pain and suffering. Some states will even allow punitive damages, which are meant to punish the defendant, and can be considerable sums of money that can help you start a new life. But obtaining vindication through the court system comes at a cost. There is certainly a lot of stress involved, and already damaged family ties will be further strained. It also difficult for many victims to just recognize their own abuse; actually taking the abuser to court may be too difficult for them to contemplate. But sometimes when victims realize the position they’ve been put in and want to fight back, suing their abuser may be the best way to break ties with the past, especially if the abuser may be going to jail anyway. And while litigation is expensive, courts can often force the abuser to pay your litigation fees, and many attorneys work on contingency.
If you’re considering bringing a tort action for injuries you received from a family member, keep the following points in mind:
• Is it worth it? Does your abuser have the money to pay damages?
• Does the abuser have insurance? Home owner’s insurance will NOT pay for intentional torts, but will pay for negligence (you might be able to frame your abuse as the result of negligence)
• If you are getting a divorce, be careful of signing a marriage settlement, which will often include clauses to prevent suits for any past abuse.
Understanding how domestic violence charges work in Utah is important if you have been charged with domestic violence. In Utah, there is not a single crime that is specified as “Domestic Violence” rather, there are many crimes that are considered a “Crime of Domestic Violence”. To be considered a crime of domestic violence the offender and the victim must have a relationship that is included in the definition of cohabitant that has been set forth in Utah law. Some of these relationships include:
• Common law husband
• Common law wife
• Individuals that have a child together
• Individuals related by blood or marriage
Some of the most common criminal charges that are classified as domestic violence crimes in Utah include:
• Simple assaults
• Aggravated assaults
• Criminal mischief
• Protective order violations
If you are convicted of a domestic violence offense, you should understand that you will more than likely be restricted from possessing a firearm pursuant to federal law. You will also be required to complete an assessment and 12-14 weeks of counseling through the Division of Child and Family Services. If you are accused of domestic violence you may find that the accusation is followed by a protection order for or against your spouse and children. Being accused or convicted of a domestic violence charge can be scary.
How Domestic Violence Affects Child Custody in Utah
The effects of domestic violence are far-reaching and can leave visible and invisible scars for years to come. A parent’s past record of abuse, also called “domestic violence,” may significantly alter the outcome of a child custody case. In cases of chronic abuse, a parent may have limitations placed upon his or her visitation rights, or in the most extreme situations, the abusive parent may lose his or her parental rights entirely.
In situations where domestic violence is ongoing or there is a fear of future abuse, a protective order may be appropriate. Utah’s court website provides protective order forms and basic information about obtaining a protective order. In order to obtain a protective order, you must show that you have been harmed or threatened by one of the following categories of individuals:
• current or former spouse (including spouse by common law marriage)
• person who resides or formerly resided at your same residence
• person who shares a child or unborn child with you, or
• person related by blood or marriage.
If a judge determines that domestic violence has occurred in your case and is likely to occur in the future without court intervention, your protective order will be granted.
Central to any custody decision is what sort of living and visitation arrangement best serves the child’s emotional well-being. Utah recognizes two types of custody: legal custody (decision-making authority) and physical custody (where the child resides). While Utah courts prefer joint or shared custody situations, a history of domestic violence could serve as justification for a judge to deviate from a joint custody arrangement and limit the abusive parent’s visitation with his or her child.
Impact of Domestic Violence on Child Custody Orders in Utah
In determining the best interests of the child, evidence of domestic violence is one of several factors considered and weighed in a custody decision. A single, unreported incident of domestic violence does not automatically mean a parent will lose visitation rights. However, a chronic history of abuse or a parent’s failure to protect his or her children from domestic violence could result in restrictions on custody and visitation or a complete termination of parental rights.
Supervised visitation may be required in cases of chronic or recent domestic violence; it requires the presence of another adult at visitation sessions between the child and abusive parent. Although restrictive, a supervised visitation order does not mean that the abusive parent will only ever receive supervised visits with their child. Nevertheless, before the supervised visit requirement can be lifted, the abusive parent must prove to the court that the child would be safe in his or her care and there is no likelihood of ongoing abuse.
Termination of parental rights
When a judge decides to terminate a parent’s custodial rights, including all rights to visit with or otherwise parent his or her child, the decision is permanent and cannot be undone by a parent’s subsequent good behavior. A judge will only terminate parental rights in the most extreme circumstances. Some reasons a Utah court would terminate parental rights include sexual abuse of any child, causing a disabling injury of or disfigurement of the child, murder or attempted murder of any child, and intentionally or recklessly causing the death of the child’s other parent.
Ways to Help a Victim of Domestic Violence
• Make Time for Them: If you decide to reach out to an abuse victim, do so during a time of calm. Getting involved when tempers are flaring can put you in danger. Also, make sure to set aside plenty of time in case the victim decides to open up. If the person decides to disclose years of pent-up fear and frustration, you will not want to end the conversation because you have another commitment.
• Start a Conversation: You can bring up the subject of domestic violence by saying “I’m worried about you because …..” or “I’m concerned about your safety…” or “I have noticed some changes that concern me…” Maybe you’ve seen the person wearing clothing to cover up bruises or noticed that the person has suddenly become unusually quiet and withdrawn. Both can be signs of abuse. Let the person know that you will be discreet about any information disclosed. Do not try to force the person to open up; let the conversation unfold at a comfortable pace.
• Listen Without Judgment: If the person does decide to talk, listen to the story without being judgmental, offering advice, or suggesting solutions. Chances are if you actively listen, the person will tell you exactly what they need. Just give the person the full opportunity to talk. You can ask clarifying questions, but mainly just let the person vent their feelings and fears. You may be the first person in which the victim has confided.
• Learn the Warning Signs: Many people try to cover up the abuse for a variety of reasons, and learning the warning signs of domestic abuse can help you help them:
• Black eyes
• Busted lips
• Red or purple marks on the neck
• Sprained wrists
• Bruises on the arms
• Low self-esteem
• Overly apologetic or meek
• Changes in sleeping or eating patterns
• Anxious or on edge
• Substance abuse
• Symptoms of depression
• Loss of interest in once enjoyed activities and hobbies
• Talking about suicide
• Becoming withdrawn or distant
• Canceling appointments or meetings at the last minute
• Being late often
• Excessive privacy concerning their personal life
• Isolating themselves from friends and family
Believe the Victim: Because domestic violence is more about control than anger, often the victim is the only one who sees the dark side of the perpetrator. Many times, others are shocked to learn that a person they know could commit violence. Consequently, victims often feel that no one would believe them if they told people about the violence. Believe the victim’s story and say so. For a victim, finally having someone who knows the truth about their struggles can bring a sense of hope and relief.
Reasons Why Victims Stay
It can be hard to understand why someone you care about would seemingly choose to stay in an abusive or unhealthy relationship. Here are a few reasons why it’s not easy to part ways.
• Fear of harm if they leave
• They still love their partner and believe they will change
• Their partner promised to change
• A strong belief that marriage is “for better or worse”
• Thinking the abuse is their fault
• Staying for the children
• Lack of self-confidence
• Fear of isolation or loneliness
• Pressure from family, community, or church
• Lack of means (job, money, transportation) to survive on their own
Domestic Violence Lawyer
When you need legal help from a Domestic Violence Lawyer, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506