June 29, 2017

Divorce and Domestic Violence: When Family Law Meets Criminal Law

Aimee Pingenot Key

Although family law and criminal law are two very distinct areas of law, they frequently overlap, creating challenges for practitioners of both disciplines. When a family law case involves elements of criminal law, the case becomes exponentially more complicated for the family law practitioner. Often, the multitude of orders in the family courts and the criminal courts seem to conflict with one another. Cases may proceed simultaneously in different courts and through different attorneys, leading litigants to question which orders take precedence. This article examines the common intersection between family law and criminal law specifically in the realm of domestic violence.

Divorce and Domestic Violence

Divorce is frequently a triggering event for domestic violence. Domestic violence is generally defined as abuse by one partner against the other in a marriage or other intimate relationship. Pushing, shoving, hitting, sexual assault, and other forms of physical attack are all forms of domestic abuse, as are stalking, intimidation, isolating a partner from others, withholding money, and emotional abuse of all kinds. Research from the National Coalition Against Domestic Violence found that on average nearly 20 people per minute are physically abused by an intimate partner in the United States. This equates to more than 10 million women and men each year. One in three women and one in four men have been victims of some form of physical violence by an intimate partner in their lifetime. One in five women and one in seven men have been victims of severe physical violence by an intimate partner in their lifetime. Further, one in seven women and one in 18 men have been stalked by an intimate partner in their lifetime to the point that they felt very fearful or believed that they or someone close to them would be harmed or killed.

Although the legal definitions of domestic violence can vary between states, the National Center for State Courts’ State Court Guide to Statistical Reporting 2009 defines domestic violence as “criminal cases involving violence, coercion, or intimidation by a family or household member against another family or household member.” All 50 states and the District of Columbia have statutes that require the courts to consider domestic violence committed by one parent against the other in resolving a custody or visitation dispute between parents. Many states also have statutes or case law that require courts to consider the occurrence of violence in a child’s household in resolving custody disputes aimed at ensuring a child is not placed in a household where violence occurs or where a parent will not protect a child from future violence. As recently as 2010, 22 states had enacted presumptions against awarding custody of children to parents who committed family violence, whereas the remaining states and the District of Columbia only required that a court consider family violence as a factor in determining child custody. Most states do not have statutes that discuss exactly what level and frequency of violence determine possession and custody, allowing judges wider discretion to consider the impact of domestic violence. Some states such as New Hampshire and Nevada define abuse in terms of the state criminal codes, requiring the abuser’s conduct to fit into one of the list of crimes in the statute before it is considered in a family law case. States set out different kinds of proof to show what is admissible or required to prove domestic violence. Arizona requires the courts to consider findings from other courts, medical reports, police reports, child protective services reports, and witness testimony, whereas in Massachusetts the issuance of an ex parte protection order is not admissible to show abuse. Most state statutes do not require proof that the child witnessed the violence or that the violence had an impact on the child. However, at least six states statutes require the court to determine whether the violence had an adverse effect on the child when custody and possession are being decided.

Orders of Protection

In all 50 states and the District of Columbia, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further abuse.

Emergency protection order. In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required or requested to leave the home. In about one-third of states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident without further investigation or court intervention.

In some states, the police can give the victim an emergency protection order (EPO). An EPO is a short-term protection order typically given to a victim by the police or magistrate when his or her abuser is arrested for domestic violence. The EPO is generally for a limited period, such as three or seven days. This permits the victim time with an EPO in place to request a longer-term protection order. An EPO may be issued where there is not yet a family law proceeding in court. An EPO is often the basis for an individual to seek a more permanent order of protection in the family courts.

Protection order. All 50 states and the District of Columbia have statutes for some form of protection order. However, states have different names for these orders. For example, Illinois, New York, and Texas call them protection orders or orders of protection, while California calls them restraining orders and Florida calls them injunctions for protection against domestic violence. A protection order is different from an EPO because it lasts for a longer term, typically one to five years, and in extreme circumstances up to a lifetime. A victim can renew the protection order if he or she still feels threatened by the abuser.

A protection order may include many different provisions, including:

  • No-contact provision. This prohibits the abuser from calling, texting, e-mailing, stalking, attacking, hitting, or disturbing the victim. The order against contact may also protect other people in the family.
  • Provision regarding contact. This permits the abuser to communicate peacefully with the victim for limited reasons, including care and transfer for visitation of their children.
  • Stay-away provision. This orders the abuser to stay at least a certain number of yards or feet away from the victim and the victim’s home, job, school, and/or car. The stay-away distance can vary by state, judge, or the lethality of the situation, but is often at least 100 yards or 300 feet.
  • Move-out provision. This requires the abuser to move out of a home shared with the victim. This order may apply even if a residence is in the sole name of the abuser. The judge can order the police to escort the abuser to remove personal items from the residence, or shared place of business, so that the victim is protected by the police during any necessary contact.
  • Firearms provision. This requires the abuser to surrender any guns he or she possesses (in about two-thirds of states) and/or prohibits the abuser from purchasing a firearm.
  • Counseling provision. This orders the abuser to attend counseling, such as batterer’s intervention, anger management, or Alcoholics Anonymous.
  • Provision regarding payment of expenses. In some states the court may also order the abuser to pay for costs that resulted from the abuse, for example household bills that are due right away, medical/dental treatment, moving expenses, or loss of earnings. The judge can also make the abuser pay the victim’s attorney fees and can make the abuser pay damages to the victim or other people who helped the victim or got hurt by the abuser.

Protection orders may include the victim’s children, other family members, roommates, or current romantic partner. This means the same no-contact and stay-away rules apply to the other listed individuals, even if the direct harm was to the victim. Many states now allow pets to be protected by the same order, as abusers may harm pets to torment their victims. As a result of growing scientific documentation of the frequent co-occurrence of animal abuse and domestic violence, state legislatures have begun to offer legal protection for the animal victims of family violence. Maine enacted the nation’s first laws in 2006 that empower courts to include companion animals in domestic violence protection orders, and that same year New York and Vermont followed suit. Since then, 29 states have enacted laws that include animals in orders of protection.

Some states issue protection orders for situations that not only involve physical violence but also threats of violence. Delaware, for example, includes within its definition of domestic violence instances where an abuser causes a victim to reasonably fear receiving a physical injury, even where no injury follows. In Delaware defendants may be convicted under such circumstances even when they act without intending to cause such fear, if they are found to have acted recklessly and with extreme disregard for the probable consequences of their acts. Delaware’s definition of domestic violence also includes instances where a person conveys to the victim a threat to harm a third person, such as the victim’s child. In some states, people may be charged with an additional offense besides the underlying act where a child witnesses the commission of the act. In Utah a defendant is guilty of child abuse where a child is present during the defendant’s infliction of serious bodily injury against a person with whom the defendant cohabitates.

Federal Firearms Prohibition

A person who has been convicted of the felony or misdemeanor crime of domestic violence toward a spouse, former spouse, cohabiting intimate partner, or a person with whom the offender shares a biological child is prohibited from owning firearms. Likewise, a person under a permanent restraining order is not permitted to own firearms. A qualifying protection order in which the federal firearms prohibition would apply is one (1) where the petitioner and respondent are married or formerly married, live together or formerly lived together, or have a child in common, or the petitioner is the respondent’s child; (2) issued after a hearing of which the offender had actual notice and an opportunity to participate; (3) that restrains the offender from harassing, stalking, or threatening the intimate partner or child or from engaging in conduct that places either the partner or child in reasonable fear of bodily injury; (4) that includes an express finding that the offender presents a credible threat to the physical safety of the intimate partner or child; or (5) that expressly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that might reasonably be expected to cause physical injury.

Violation of Protection Orders

Violation of a protection order can be treated as a felony, misdemeanor, or contempt of court and may result in a variety of penalties depending on the severity of the violation, the specific terms of the order, and the state in which the violation occurred. Felony charges are often reserved for either repeat or serious violations. Sometimes violations are considered both contempt of court and a new domestic violence charge such as aggravated stalking or other advanced crimes, although California found this to subject the defendant to double jeopardy. In many states, police policy is to arrest violators of these orders automatically.

Enforcing Protection Orders in Different States

The Violence Against Women Act (VAWA) is a federal law enacted in 1994 that provides for investigation and prosecution of violent crimes against women, imposes automatic and mandatory restitution on those convicted, and allows civil redress in cases prosecutors choose to leave unprosecuted. The full faith and credit provision of VAWA defines “protection order” as any civil or criminal restraining order, injunction, bail or release order, probation condition, or any other order for protection issued to protect victims of domestic violence, sexual assault, dating violence, or stalking or to deter offenders from further violence or abuse. Under VAWA, domestic violence survivors may move as part of a plan to keep them safe from a former abuser. The Full Faith and Credit Clause of the Constitution and VAWA requires that a valid protection order can be enforced in the jurisdiction where it is issued and in all other U.S. states and territories as well. Therefore, if an abuser stalks a victim in his or her new state of residency, the police must uphold the protection order from another state.


Although family law is very different from criminal law, an understanding of the implications and interconnection between the two allows practitioners to better protect and advise their clients in cases involving domestic violence.

Aimee Pingenot Key

Aimee Pingenot Key practices family law as a partner with GoransonBain, PLLC, in Dallas, Texas. She also holds a master’s degree in social work.