Domestic Violence Petitions and Criminal Charges Relating to Divorce or Child Custody

Each of these types of cases can have significant consequences for a divorce or custody case that is happening at the same time.

Protection order cases (also known as restraining order cases) are civil cases. They are put on an exceptionally fast track. The right buzz words in a sworn Application will generate an ex parte Temporary Protection Order good for 14 days, even if the buzz words bear little resemblance to what actually happened. Ex parte is Latin for “from one side (only).” In other words, the Temporary Protection Order is issued on the request of one side without any response from the other. Kind of a shoot first and ask questions later approach (if you are on the wrong side of the order) or what’s necessary in an emergency (if you are the party that obtained the order).

There is usually no opportunity for discovery in these cases. Hearings are scheduled (and usually held) by the end of the 14-day period in which the Temporary Protection Order remains in effect. Depending upon the evidence, the court can then enter a further 90-day Protection Order. Sometimes that order will in effect decide or at least influence issues in a related divorce or child custody case. Also a Protection Order that is entered after a hearing (or the opportunity for a hearing) will under federal law prohibit the person against whom that order is entered from possessing firearms.

Protection Order cases have many technical requirements of their own. However, despite their expedited and sometimes informal procedures, protection order cases are governed by the rules of civil procedure and rules of evidence. As with criminal charges, a domestic violence action is typically not a good one in which to “do it yourself.”

riminal charges of assault and battery are in some ways more straight-forward, or at least more familiar. Whether someone is hit in front of a bar by a stranger or in the home by a family member, a battery is a battery. But these days, the “domestic” label when attached to a charge of assault or battery leads to enhanced penalties. The presence of children when a domestic battery allegedly occurred will also cause an enhancement of the penalty. As with decisions in civil protection order cases, convictions in criminal cases can be relied upon by the “victim” in a divorce or custody case and will sometimes have far-reaching effect.

This discussion is intended only as an introduction to the topic, and an attorney should be consulted for any specific case.