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Family Law Attorney In Utah

Family Law Attorney In Utah

Domestic Violence

Domestic violence used to be a secret to be “kept in the family” or swept under the rug. But it’s now more prevalent in news and media than ever before. As a result, a lot of people are thinking about what constitutes domestic violence. Why do people stay in abusive relationships? How can family and friends help a loved one leave an abusive partner?

Domestic Violence, Legally Defined

Domestic abuse is a top public health concern. Homicide by an intimate partner is one of the leading pregnancy-associated causes of death, according to research. And yet many people do not understand the scope of abusive behavior. Early in their intimate relationship, victims may not realize they are experiencing domestic violence. They fail to take action and then it escalates.

The National Domestic Violence Hotline defines domestic abuse as “a pattern of abusive behaviors used by one person to gain or maintain control over another person in an intimate relationship.”

The victim is often a spouse (male or female). But they can also be a dating partner, a child or parent, a family member, or a roommate. It is a person with whom the abuser is in close proximity.

Most people think of domestic abuse as battering or assault, but there are several types of abuse:

 Physical abuse is most likely to be seen by coworkers or health care providers. Victims often find ways to hide the evidence of the abuser’s violent behavior. But physical violence can lead to physical injury requiring medical care.

 Sexual abuse may not be understood by the victim as abuse until it becomes sexual violence. Non-consensual sex, even within marriage, is sexual assault. Young people, in particular, need to be educated about dating violence.

 Emotional abuse causes the victim to feel intense emotional distress. The abuser may verbally demean and socially humiliate their victim. They may engage in name-calling. Emotional abuse damages the victim’s self-esteem and sense of self-worth. Stalking, harassment, and threats are forms of emotional abuse; They are designed to instill fear in the victim.

 Psychological abuse is controlling behavior that damages the victim’s mental health. They may think they are going crazy. They may develop post-traumatic stress disorder (PTSD).

 Economic abuse or financial abuse is an extension of the abuser’s need for control. They may prevent a spouse from earning money or from having access to money. An abuser may steal money from an elder parent with whom they live.

Punishing Domestic Violence

While law enforcement once turned a blind eye to intimate partner violence, state laws now require an arrest and mandate penalties. Restraining orders are easier to get, at least initially. And federal and state laws are in place to prevent abusers from owning guns.

Survivors of domestic violence can sue their abusers in civil court to recover damages for their injuries.

Unfortunately, these remedies are only available after the abusive behavior or physical violence has already occurred.

Preventing Domestic Violence

Domestic abuse nonprofits and governmental agencies exist in every state. They provide information and training on how to identify the warning signs of abuse. They provide practical resources to help survivors of domestic violence create a safety plan to exit dangerous relationships. They provide referrals for safe places to shelter and offer victim hotlines in a variety of languages. And they undertake legal advocacy.

Help is a phone call away. But as many victims know, that phone call and those first steps can be extremely dangerous. Their lives are often at stake. If the U.S. wants to end the scourge of family violence, it needs to provide human services resources and physical and financial support to help victims break free once and for all.

Stopping Domestic Violence

There are a number of ways victims and other witnesses can stop domestic violence, which is defined as a violent act committed by one family or household member against another. For example, an abused spouse may petition a judge to issue an “ex parte” (or restraining) order against the abuser. In any event, victims should understand that they have options to living in an abusive household.

We can all take steps to stop domestic violence. If you or a loved one are trying to leave an abusive relationship, it’s important to remember that it’s the abuser who needs to change. However, your abuser may be unable or unwilling change and you should never have to endure abuse from anyone. Your number one priority should be safety for you and your loved ones.

Thinking of leaving an abusive relationship. Where to start?

First, plan for your safety. Contact the National Domestic Violence Hotline at 1-800-799-7233 or your local domestic violence outreach organization to learn more about how to create a safety plan or to discuss how to approach a friend about your concerns for his or her relationship. In addition, you or your loved one may want to attend a domestic violence support group.

Not feeling safe at home. Where to go?

If you need to immediately leave a home you share with your abuser, you can call a local domestic violence agency. They can give you information about how to enter the local domestic violence shelter or confidential motel voucher program. Shelters are frequently full and you may have to leave your area to find a safe, confidential shelter. If your abuser has not been trying to find you or is highly unlikely to try to find you, you may consider leaving to a regular, homeless women’s shelter.

Left the abuser. What can you do to stop him or her from coming after you?

A great legal option that can help to stop domestic violence is a protection order, which is a court order that says your abuser cannot come within a certain number of feet of you, your home, your car, your work, or your school. This doesn’t prevent an abuser from stalking or attacking you, but it does allow you to call the police for assistance if he or she violates the order.

How can you stop domestic violence? What can you do?

The best answer to the question of how to stop domestic violence, and the only way to permanently do so, is to end the cycles of control and abuse in relationships. This involves teaching children to respect their romantic partners by demonstrating respectful, healthy relationships with our spouses and partners.

We can also take more concrete steps in our daily lives to help achieve that goal, including:
 Calling the police if you see or hear evidence of domestic violence.
 Speaking out publicly against domestic violence (for example, if you hear a joke about beating your spouse, let that person know you aren’t okay with that kind of humor).
 Referring your neighbor, co-worker, friend, or family member to a domestic violence outreach organization if you suspect they are being abused.
 Considering reaching out to your neighbor, co-worker, friend, or family member that you believe is being abusive by talking to them about your concerns.
 Educating others on domestic violence by inviting a speaker from your local domestic violence organization to present at your religious or professional organization, civic or volunteer group, workplace, or school.
 Encouraging your neighborhood watch or block association to watch for domestic violence as well as burglaries and other crimes.
 Donating to domestic violence counseling programs and shelters.
 Being especially vigilant about domestic violence during the stressful holiday season.

Filing a Domestic Violence Lawsuit

Most acts of domestic violence result not only in criminal liability, but also civil liability for the perpetrator. This means that if you’re a victim of domestic violence, it’s possible to sue your abuser in civil court for your injuries under tort law.

Tort law provides civil legal remedies for people who are injured in some way by another, usually in the form of financial damages or injunctive relief (the court ordering someone to do or not do certain acts).

Criminal Proceedings Do Not Bar a Victim from Suing in Civil Court

A common misconception is that once a person has been tried for something in criminal court, he or she cannot be tried in civil court for that same claim. This isn’t true. Take the Goldman v. Simpson case, for example. O.J. Simpson was acquitted in criminal court for the murder of Ron Goldman, but Goldman’s parents sued Simpson for money damages in civil court and prevailed.

Just because your abuser has been tried in criminal court or you have obtained a restraining order against him or her does not mean you cannot sue your abuser in civil court. The concept of double jeopardy does not apply to civil cases, but only when there are multiple criminal prosecutions for the same crime.

Suing a Family Member

Traditionally, courts would not allow family members to sue each other for torts. This law was based on concerns about breaking down the family unit. Today, most state courts have moved away from this, reasoning that if family members have torts claims against each other, the family unit is probably already broken down, and those injured parties should have their day in court.

As it stands, Louisiana is the only state in the U.S. that still bars spouses from suing each other, except in certain circumstances. However, spouses can generally sue each other for intentional torts. An intentional tort refers to a deliberate action that causes harm to another person. Since many forms of domestic violence constitute intentional torts, such as battery, assault, and psychological abuse, these acts could constitute claims for a lawsuit even in a jurisdiction that would normally bar suits between family members. Another tort claim, the intentional infliction of emotional distress, may also be available if the abuser was stalking, threatening, or destroying property.

Things to Consider Before Filing a Domestic Violence Lawsuit

Often, victims of domestic violence have been robbed of their sense of control and of their emotional outlet. Suing your abuser can give them a sense of control and emotional relief. The types of damages potentially available to domestic violence victims include:
 Lost wages
 Medical expenses
 Pain and suffering
 Punitive damages (only available in some states)

Keep in mind that a great deal of stress is involved in any lawsuit. Lawsuits involving family members can be even more stressful because of the strain placed on family ties. It is often hard enough for victims to even make a police report or file for a restraining order against their abusers. Taking the abuser to court may be just as difficult. However, once victims realize their position, they may be ready to fight back. The act of taking their abuser to court may act as a form of closure for victims—a way to leave the past behind and start fresh.

Litigation can be very expensive. However, courts can force the abuser to pay your fees. Although unusual in these types of cases, attorneys sometimes work on a contingency basis in lawsuits involving money damages. If an attorney agrees to represent you under this fee arrangement, you won’t pay unless you win the case. To put it bluntly, when considering whether to file a domestic violence lawsuit, it matters whether your abuser has money or assets available to pay damages.

Orders of Protection and Restraining Orders

Survivors of domestic violence have several civil and criminal protection or restraining order options to protect themselves from further abuse. Although these orders won’t necessarily stop an abuser from stalking or hurting a victim, they permit the victim to call the police and have the abuser arrested if the order is violated.

Emergency Protection Orders

In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required (or requested) to leave the home. Often, this person is the abuser, although the police can be mistaken about who the aggressor is. In about one-third of states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident.

In some states, the police can give the victim an Emergency Protection Order (EPO), which is a short-term protection order typically given to a victim by the police or magistrate when his or her abuser is arrested for domestic violence. An EPO is generally for limited period, such as three or seven days, which allows the victim time to request a longer-term protection order.

Protection Orders

All 50 states and the District of Columbia have statutes for some form of protection order. However, states call this protection order different things. For example, Illinois, New York and Texas call them protection orders or orders of protection, whereas California calls the same thing a restraining order, and Florida calls it an injunction for protection against domestic violence, it is simply known as a Protection Order in Utah.

A protection order is different from an EPO because it’s longer term, typically for one to five years, and in extreme circumstances, for up to a lifetime. A victim can renew the protection order if the victim still feels threatened by his or her abuser.

A protection order may include many different provisions, including:

No Contact Provision: Prohibiting the abuser from calling, texting, emailing, stalking, attacking, hitting, or disturbing the victim.

Peaceful Contact Provision: Permitting the abuser to peacefully communicate with the victim for limited reasons, including care and transfer for visitation of their child.

Stay Away Provision: Ordering the abuser to stay at least a certain number of yards or feet away from the victim, his or her home, job, school, and car. The stay-away distance can vary by state, judge or the lethality of the situation, but is often at least 100 yards or 300 feet.

Move Out Provision: Requiring the abuser to move out of a home shared with the victim.

Firearms Provision: Requiring the abuser to surrender any guns he or she possesses (about 2/3rds of states) and/or prohibiting the abuser from purchasing a firearm.

Counseling Provision: Ordering the abuser to attend counseling, such as batterer’s intervention or anger management.

Protection orders may include children, other family members, roommates, or current romantic partners of the victim. This means the same no contact and stay away rules apply to the other listed individuals, even if the direct harm was to the victim. Some states even allow pets to be protected by the same order, as abusers may harm pets to torment their victims.

Some states include as part of the protection order visitation and custody for children of the victim and abuser. These are generally temporary and can be modified by divorce or other future family court orders.

In order to obtain a protection order, you need to file the required legal papers with your local court, and follow your state law to present evidence at your hearing and to serve your abuser. The police can sometimes serve the papers for you.

Restraining Orders

A restraining order is an order requiring parties to a lawsuit to do or not do certain things. It may be part of a family law case, such as a divorce, or other civil case. Although this isn’t the same as a “domestic violence restraining order,” which is summarized above, domestic violence can be a factor in the underlying family law case.

Restraining orders may be requested “ex parte” meaning that one party asks the court to do something without telling the other party. If the restraining order is granted ex parte, then the other party is later permitted a hearing to present his or her side of the story. This is often the process for protection orders as well. Since restraining orders also vary by state, it’s important to consult with an attorney familiar with the law where you live. If a criminal case is pending, the district attorney may request or the judge may order a protection order for the victim of the crime.

Violation of Protection Orders

Violation of a protection order can be treated in one of three ways: as a felony, misdemeanor, or contempt of court. Felony charges are typically reserved for either repeat or serious violations. Sometimes violations are considered both contempt of court and a new domestic violence charge. In many states, police policy is to arrest violators of these orders automatically.

Enforcing Orders of Protection in Different States

Domestic violence survivors may move as part of a plan to keep them safe from a former abuser. The Full Faith & Credit Clause of the Constitution and federal law require valid protection orders to be enforced where it’s issued and in all other U.S. states and territories as well. Therefore, if an abuser stalks a victim in his or her new state of residency, the police must uphold the protection order from another state.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506