Orders of Protection, Domestic Violence and Child Custody
Disclaimer: The materials and content within this podcast are intended as general information only and are not to be considered a substitute for professional legal advice or a consultation with a lawyer.
1. Family Law Fact or Fiction
The purpose of this part of the show is to dispel common family law myths circulating in the world. Wendy is going to give you three fact patterns, and your job is to decide whether they are family law fact or fiction.
First fact pattern:
You live in Arizona, which is a community property state. During marriage, your mother wins the lottery and gives you $50,000 for your birthday. Your spouse files for divorce. You don’t have to share the money.
Fact. Gifts acquired during marriage are the sole and separate property of the person who received those gifts.
Second fact pattern:
You still live in AZ. You file for divorce and serve your spouse, but before the divorce is final, you win the lottery. You have to split the money with your spouse because the divorce isn’t yet final.
Fiction. However, this is a fiction only if you go through with the divorce. After you serve your spouse with the Petition for Dissolution, property you acquire is your sole and separate property (including lottery winnings).
Third fact pattern:
You and your spouse are in Arizona. You keep separate bank accounts, and you never commingle the money in those accounts. At the time you file for divorce, you have over $50,000 in savings in YOUR bank account. That money is yours and yours alone.
Fiction. Your earnings during the marriage are considered community property. As a result, they are subject to division at the time of divorce.
2. Orders of Protection, Domestic Violence and Child Custody
There are 3 types of protective orders in Arizona: Orders of Protection (OOP), Injunctions Against Harassment and Injunctions Against Workplace Harassment.
What is an Order of Protection?
OOPs are usually issued when there is an incident of domestic violence or a threat of domestic violence. In order to get an OOP, a person doesn’t necessarily have to have suffered harm. The threat of force can be enough to have a judge sign off on an OOP.
If you can show a judge in Arizona by a preponderance of the evidence that domestic violence has occurred or is likely to occur, you can probably get an OOP.
If you’re trying to get an OOP, be sure and tell the judge about the other party’s behavior towards you. Tell the judge what has happened. Tell the judge what the other person has said.
A judge will usually be the most concerned about things that have happened in the last year. If your only allegations are older than a year, that will work against you.
TIP: If you want to go and get an order of protection, be sure and make copies of text messages, e-mails, etc. so the judge can have that info without having to keep the phone or computer (to admit into evidence during the hearing).
What Constitutes Domestic Violence
This is a subjective area except with respect to areas defined by the statute. For Arizona’s laws, see A.R.S. 13-3601 for specific crimes that are considered domestic violence (such as assault, intimidation, etc.) Name calling itself might not be enough to get an order of protection. Once act of physical domestic violence might be enough to get an order of protection.
There are some cases where people get orders of protection that are not justified. If you have a case like that, it is possible the case could ultimately be dismissed. Keep in mind that if you have an order of protection that is not justified in your case, it could work for or against you in terms of gaining or maintaining custody (legal decision-making).
Order of Protection Hearings
If you want to challenge or modify a valid OOP (an OOP that has been served), you must request a hearing. In Arizona, the court has to give you a hearing within 5-10 days.
You are entitled to have an attorney represent you in Arizona at OOP hearings. At the hearing, the judge will only want to hear about those things that you wrote in the Petition for Order of Protection itself.
TIP: If you are going to want to talk about certain issues at a hearing, be sure and write those things down in your Petition for Order of Protection.
TIP: In Arizona, you get very limited time scheduled for a hearing on an OOP. Use your time wisely. If you don’t, you could miss out on saying things you want to say which could compromise your case.
TIP: Be on time for the hearing if you are the one who wants the OOP upheld. If you aren’t on time, your OOP could be dismissed.
If you challenge an OOP and lose, you could lose your right to bear arms for up to one year in Arizona. If your livelihood depends on your ability to carry a firearm, you might consider asking the judge to modify the OOP to allow you to carry it while on duty. Also, you might be able to negotiate with the other party about modifying the OOP to allow you to carry the weapon for your work.
Orders of Protection and Child Custody
Oftentimes, people use OOPs as swords in child custody cases. Some individuals try to prevent the other parent from having access to the kids or to certain places (like school). In cases where there is actually domestic violence against the other parent, an order of protection might be justified. However, if there has not been domestic violence against the children, the children do not have to be listed on the order of protection itself.
In some cases, judges consider an unjustified order of protection in making a decision whether or not to award parties joint custody or not. This is particularly true when one parent has been prevented from seeing the children for a long period of time.
TIP: In Arizona, keep in mind that your OOP will have a different case number and judge than your family law case.
Orders of protection cause complications for parties who share parenting time with the children. If the primary residential parent is ousted from the home, it could affect the children because they will probably have to relocate. If there’s an order of protection in place, you might not be able to call the children when they are not with you if your ex’s number is protected. For younger kids, an order of protection makes drop offs/pick ups hard when the children can’t get off the car and walk to the door (or other car) themselves. This means a third party usually needs to get involved with the parenting exchange.
In Arizona, an OOP triggers a legal presumption that joint legal decision-making is not in the best interests of the children. There are ways to overcome this presumption like completing a batterer’s prevention program, counseling, etc.
If you have been served with an OOP and have a family law case, remember to be accountable for your actions. Take responsibility if you made a mistake. This goes a long way with judges.
Before getting an OOP, make sure you are getting it for the right reasons!
FINAL TIP: If you have been served with a no contact OOP, don’t have contact with the other person. Having contact will likely result in criminal charges against you which could ultimately affect custody of your children.
3. Thoughts From the Life Coach
In this week’s episode, James talks about the things he is going to do in 2014. His list is pretty impressive. Give his thoughts a listen because the chances are, you will want to steal some of his ideas for making the coming year the biggest and best ever.