There are at least two distinct legal aspects of domestic violence, civil and/or criminal. Each or both can apply to a victim or perpetrator or alleged perpetrator of domestic violence. The matter becomes more difficult and legally complex where children are involved or the type of domestic violence is mental or sexual.
Thus, there are two distinct clients that a domestic violence attorney may represent – the alleged abused spouse/significant other or the alleged batterer. And it may be that there is a civil case (divorce most likely) and criminal case pending. If both cases are operational at the same time, it presents unique challenges for the Indiana domestic violence lawyer if he or she is representing the alleged batterer on both cases, as statements made in civil divorce court, such as in a preliminary hearing on custody, may be used against the criminal defendant in the criminal domestic violence case. As such, the alleged batterer may have two domestic violence attorneys, one to handle civil matter and one to provide a criminal defense.
The alleged batterer may choose to exercise his or her Fifth Amendment privilege and not testify in any stage of the divorce proceedings that might be self incriminating, but this likely will have a negative impact on his or her custody and parenting time objectives. In fact, it is highly likely that a divorce court facing the question of whether or not a domestic battery occurred would order the alleged batterer to have supervised or restricted parenting time, or no parenting time at all.
As this example shows, a divorce case, coupled with a criminal case for domestic battery, presents unique and difficult issues for the attorney and the alleged batterer, and requires counsel with skills in both the divorce and criminal arenas. Additionally, there may be a no-contact order from the criminal case requested by the prosecution and ordered by the judge to protect the victim, or the alleged battered spouse may seek a protective order under the Indiana Civil Order Protection Act (known by the acronym “ICOPA”) (Evans v. Thomas, 2012).
With respect to the victim of domestic violence, a skilled domestic violence attorney will be keenly aware of the emotional “hole” that the victim is in – namely the cycle of domestic violence that is dangerous and why battered spouses (or unmarried couples) so often reconcile. This has been described in psychological literature as a “honeymoon phase” where the batterer promises to change, the parties reconcile, tension builds, and more domestic violence occurs, and then finally, the stage where the battered spouse/significant other leaves, usually again.
An inherent part of domestic violence is the isolation that most battered persons experience. Social isolation, to the victim, often means that leaving the batterer is not a realistic option. Victims of domestic battery experience a lack of any support network of friends or family and other resources (particularly financial), which makes it difficult to leave the batterer (with or without children). In many cases, the same thing occurs several times before the victim gets out, stays, or another terrible outcome occurs.
The success stories are generally similar: a victim leaves with some support of a friend or family member, makes a police report, and his or her children wind up staying at a shelter while the initial criminal case is analyzed for a criminal charge; this is tasked to a prosecutor, a civil attorney for the victim will probably just monitor the criminal aspect to see if it results in the prosecutor assisting the victim with a Indiana Civil Protective Act Order to allow the victim to have effective custody and/or a possession of the home.
At this time, the civil divorce lawyer typically files for divorce and the Indiana Civil Protective Order Act will be consolidated with the divorce filing. The divorce court can make the effect of the ICPOA order or divorce preliminary order such that it provides a victim-spouse and children with possession of the home or even requires payment of child support.
Ultimately, if the abuse is substantiated, either by a criminal battery conviction or an ICPOA order made permanent by virtue of hearing (not ex parte), the trial court may account for the conviction or ICPOA order in the final divorce, such as by dividing the marital estate so the mother and children can remain in the home and, the mother, who may have been a home-maker, can receive some rehabilitative maintenance in order to get re-trained for viable employment. However, Indiana domestic violence attorneys typically face great challenges because the battered spouse has been kept out of the finances, which requires a great deal of work to reconstruct.
In the polarized context of the victim-perpetrator, a legal point that is lost is that in a small percentage of Indiana cases, abuse is alleged by a spouse/significant other simply to gain a tactical advantage in the litigation, typically divorce litigation. This results in a criminal charge to be defended against and/or an Indiana Civil Order Protective Order being issued ex parte (without a hearing), and after hearing, the ICOPA order left standing, with the impact being that the spouse against whom it is issued is Brady disqualified (i.e., prohibited by state and federal law to possess a firearm). If he or she is a police officer or member of the military, this may result in desk duty or other employment impairment.
This creates so many collateral legal matters that the wrongly-accused spouse may lose track of the divorce case, including property and custody issues, which results in a tactical advantage for the other spouse. Thus, if any of these are your cases, it is important to obtain a domestic violence lawyers who understand all of the variants of domestic violence and how it plays out in criminal and civil courts.
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