A domestic violence allegation can place you at risk of immediate legal restrictions and long-term consequences. Even before a court determines the facts, protective orders and accelerated hearings can reshape your daily life. Knowing how these cases unfold and how to respond strategically can make a significant difference. This article explores practical defense approaches to help you protect your rights and prepare for what lies ahead.
Understanding a Domestic Violence Complaint
Victims must fill out forms to share essential information, including if they sustained harm, have photographs, and if any property was damaged. You must extensively describe the event and provide reasons for an extended restraining order. A court staffer will use these details to prepare a domestic violence complaint that shows the date of the alleged issue and the petitioner’s claims.
A sheriff or police officer must serve the accused with a copy of the complaint, including the scheduled hearing date. “If the court establishes that the defendant is guilty of domestic violence after the hearing, the judicial authorities may grant the plaintiff a permanent restraining order forbidding the accused from initiating any contact for a given period,” says domestic violence attorney Mark Sherman of The Law Offices of Mark Sherman, LLC.
Temporary Restraining Orders Explained
Issuing a temporary restraining order is the first step in a domestic violence matter. People often get temporary restraining orders through an ex parte hearing. “Ex parte” in this context refers to the “petitioner” or “plaintiff.” This is the individual claiming to be the victim in a domestic violence case.
During the temporary restraining order hearing, the plaintiff may testify or present other proof of domestic violence. A court reporter is often present to document the hearing. The court will issue a temporary restraining order on the defendant if the plaintiff provides sufficient proof for their claims. A sheriff or law enforcement officer will serve or deliver the restraining order to the defendant within 24 hours of the proceeding.
A temporary restraining order tentatively bars a defendant from engaging in some activities. The court will restrain the defendant from contacting the petitioner and forbid them from returning to their home if they share an apartment. Temporary restraining orders may also bar defendants from visiting their kids in custody matters.
Temporary restraining orders often lapse within two weeks. You must file a complaint of domestic violence and demand a court hearing where both parties can present their arguments to extend a temporary restraining order beyond 14 days.
Consequences of a Domestic Violence Conviction
There are several severe legal implications of domestic violence. A convicted defendant may face eviction or removal from their home, legal fees, heavy fines, and arrest. They may also face criminal penalties or imprisonment for breaches of the Domestic Violence Order and prohibitions on the possession of firearms. Furthermore, they can also lose alimony and custody of their children.
Defenses in a Domestic Violence Incident
If someone falsely accuses you of domestic violence, consider these defenses:
1. Demand a Continuance
You may consider asking the court to continue the hearing date to have sufficient time to prepare your defense, as a domestic violence hearing often occurs within 10 to 30 days after filing a complaint. However, it is essential to note that if the court approves your continuance, it may extend the temporary restraining order pending the new hearing date.
2. Carefully Assess the Allegations
You should review the allegations to determine if the act the accuser complained about actually constitutes domestic violence. Although every state has its own definition of domestic violence, the general acts that constitute domestic violence include battery, assault, stalking, harassment, sexual assault, rape, and criminal sexual contact.
3. Confirm Whether the Plaintiff Has Met the Jurisdictional Requirements
A judge may dismiss a domestic violence case for lacking “subject matter jurisdiction.” This is a legal way of inferring that the plaintiff and the defendant involved in the domestic violence case must fall within a legally protected relationship.
Legally protected relationships include present or former spouses, individuals related by blood, marriage, or adoption, stepparents and children, parties with a child, and current or former co-residents. Others include parents and children, foster parents and foster children, and present or past dating partners.
It is crucial to note that states differ in their definitions or descriptions of protected relationships. Liaise with your attorney to analyze the facts of the domestic violence case to ensure the law covers the present or past relationship.
4. Itemize Likely Defenses to the Domestic Violence Charge
Generally, domestic violence cases have two defenses: self-defense and de minimis infractions. The petitioner may have suffered injuries because you were legitimately defending yourself against imminent physical harm.
A defendant may justifiably use physical force against a plaintiff under the doctrine of self-defense if the defendant logically believes in the necessity of such force to guard against the plaintiff’s use of unlawful force.
A de minimis infraction is another acceptable defense in domestic violence accusations. Your lawyer may seek a dismissal on the ground that the act was too trivial to be regarded as a criminal offense.
5. Carry Out Discovery Before Trial
The filing of a domestic violence complaint and the actual trial happen within 30 days. Hence, it is challenging to perform a comprehensive “discovery.” Discovery is a legal doctrine where each party can obtain information and exchange documents.
Even though domestic violence laws rarely have specific provisions for discovery, the fair play and due process principles require the availability of all discovery methods to domestic violence defendants. Thus, you or your lawyer should request the following documents from the plaintiff:
- Copies of reports or medical records on any physical harm the plaintiff alleged to have suffered
- Copies of the proof the petitioner will rely on or introduce at trial, like professional evaluations, photos, and tape recordings
- A list of witnesses the plaintiff plans to call at trial
It is also crucial to obtain relevant documents from the police and other third parties to see what the plaintiff has said about the domestic violence claims. You should specifically demand the following:
- The temporary restraining order hearing transcript
- Forms or written statements that the plaintiff filled out
- Domestic violence reports and phone recordings
Conclusion
Defending yourself against false domestic violence accusations can be tedious and challenging. Not reacting proactively may lead to a conviction. Therefore, engaging a domestic violence law attorney is crucial for defending your rights and mounting a solid defense.
