Domestic violence is a very serious problem. Each year, thousands of domestic violence (“DV”) cases are filed. If you are the victim of domestic violence, it’s important that you get help right away. For more information, see Leaving an Abusive Relationship: How to Protect Yourself and Temporary Restraining Orders.
If you’ve been falsely accused of domestic violence, this article may provide answers to some of the questions you have, but you should hire an experienced attorney to represent you at trial.
Temporary Restraining Order
A Temporary Restraining Order (“TRO”) is the first step in a domestic violence case. TROs are usually obtained through an ex parte court proceeding. Ex parte means the “plaintiff” (person claiming to be a victim of domestic violence) may ask for a court hearing without notifying the “defendant” (person accused of domestic violence).
At the TRO hearing, the plaintiff may testify or bring in other evidence of domestic violence. There is usually a court reporter present who will record what is said. If the court finds sufficient evidence, it will issue a TRO against the defendant. A police officer or sheriff must serve (deliver) the TRO to the defendant within 24 hours of the hearing.
A TRO prohibits the defendant from engaging in certain behaviors on a temporary basis. The defendant will be restrained from having contact with the plaintiff and prohibited from returning to his or her home if it’s shared with the plaintiff. In custody cases, TROs may also prevent defendants from visiting their children.
TROs usually expire within 10 days. In order to extend a TRO, the plaintiff must file a complaint for domestic violence, and ask for a full court hearing.
Domestic Violence Complaint
Although form names may vary from state to state, typically, plaintiffs must fill out a “Confidential Victim Information Sheet” and another form called the “Victim’s Voluntary Statement Detailing Prior History of Domestic Violence.” The Victim Information Sheet will contain critical information, including whether the plaintiff was injured, whether photographs were taken, and whether there was any property damage. The plaintiff must include a complete description of the incident and explain the need for a further restraining order.
A court staff person uses the information contained in these forms to prepare a Domestic Violence (DV) complaint. The complaint will indicate the date the alleged incident occurred and the plaintiff’s claims regarding what happened. A police officer or sheriff must serve the defendant with a copy of the complaint, which will include the date set for the hearing.
If, after the hearing, the court finds that the defendant committed domestic violence, it may grant the plaintiff a more permanent restraining order prohibiting the defendant from initiating any contact for a number of years.
Defenses Against a Domestic Violence Case
Domestic violence claims can result in severe legal consequences for defendants including:
eviction (being removed from one’s home)
heavy fines and legal fees
criminal penalties or jail for violations of a Domestic Violence (DV) order, and
a finding of domestic violence can affect alimony and child custody.
Consider asking for a continuance
Since a DV hearing is generally held within 10 days after the complaint is filed, you may want to ask the court to continue the hearing date so you have enough time to prepare your defense. If the court grants your continuance, it may also extend the TRO until the new hearing date.
Question whether the act complained of really constitutes “domestic violence”
A DV complaint must be based on one or more of the following acts:
kidnapping, criminal restraint, or false imprisonment
lewdness or sexual assault
criminal sexual contact
If the DV charge is based on conduct that doesn’t fit any of the above, a judge may dismiss the case. For example, if you slipped up and used a few choice words to refer to your spouse’s new partner, you probably haven’t committed domestic violence. If, on the other hand, you struck your spouse or partner, that most likely constitutes an assault.
Check to see if the “jurisdictional” requirements have been met
A judge may dismiss a DV case that lacks “subject matter jurisdiction.” This is just a fancy way of saying that the two people involved in the DV case – the plaintiff and the defendant – must fall within at least one of the following categories of persons protected by the Prevention of Domestic Violence Act (“PDVA”):
A spouse, former spouse, or former household member. The PDVA defines a victim of domestic violence as any person who is 18 years of age or older (or an emancipated minor) who is subjected to domestic violence by a spouse, former spouse, or any present or former household member.
Those who have a child or will be having a child together. A victim of domestic violence also includes any person (regardless of age) who has a child in common or anticipates having a child (is currently pregnant) with the defendant.
Those in a dating relationship. Finally, a victim also includes any person who is subjected to domestic violence by a person with whom the victim had a dating relationship.
You (or your lawyer) should analyze the facts of a DV case to make sure both people involved are protected under the PDVA.
Analyze any defenses to the domestic violence charge
There are only two defenses for DV cases: self-defense and de minimis infractions. In many DV cases, the plaintiff may suffer injuries because the defendant was legitimately defending against imminent bodily harm.
Under the doctrine of self-defense, a defendant may be justified in the use of physical force toward the plaintiff, if the defendant reasonably believed that such force was necessary to protect against the plaintiff’s use of unlawful force.
The second best defense is that the alleged act of domestic violence is a de minimis infraction, which is minor conduct that is too trivial to be considered a criminal offense.
Conduct discovery before trial
The time frame from the filing of the DV complaint to the actual trial is usually less than 30 days. Therefore, it’s difficult to conduct full “discovery” (a legal process by which either party can obtain information and documents from each other and third parties).
Although DV laws don’t typically contain specific provisions for discovery, the principles of due process and fair play require that all discovery methods be available to DV defendants. Therefore, you (or your attorney) should ask the plaintiff for the following documents:
copies of medical records or reports regarding any physical injuries the plaintiff claims to have suffered
a list of witnesses the plaintiff intends to call at trial, and
copies of all evidence that the plaintiff will rely on or introduce at trial such as photographs, tape recordings and expert reports.
It’s also important to get relevant documents from the police department and other third parties so you can see what the plaintiff has said about the DV claims. Ask for the following:
domestic violence reports and telephone recordings
written statements or forms filled out by the plaintiff, and
the TRO hearing transcript.