Domestic Violence and Divorce in Arizona
Effect of Domestic Violence on Divorce in Arizona
We all know that domestic violence and divorce in Arizona is a serious problem, but many of us have done little to nothing to prevent it. With the escalating number of abusive relationships in our society, it is well past the time we all take a look at the effects of domestic violence in Arizona.
Many people who suffer as a victim of domestic violence choose to get divorced. The correlation between domestic violence and divorce are high, but not high enough. If you do wish to file for divorce, it is imperative you find an attorney who has experience with both domestic violence and divorce in Arizona.
Arizona judges take allegations of domestic violence very seriously in a divorce. The court will classify the incidents of domestic violence abuse as either “significant” or “not significant” depending on the circumstances. A court could find one particular act of domestic as being “significant” or can take numerous less significant acts of domestic violence but still find them to be “significant” simply because of the sheer number of those incidents.
Once a court finds significant domestic violence in a divorce case, the court will be required to grant the victim of domestic violence sole custody of the parties’ children unless the abusive parent can overcome the presumption to sole custody to the other parent is not in the children’s best interests.
The fact that your children may have been witness to domestic violence, either by seeing it happen or hearing it from the other room, is, in and of itself, child abuse. Children can be horrible negatively affected by abuse in their home. This is damaging to the children and is a form of child abuse. So domestic violence is relevant to the issues surrounding the children in a divorce in Arizona.
Many people are aware domestic violence has a negative impact on the victim. It is also important to be mindful of the fact that the longer that the abuse continues, the more negative those effects will be. It is vital that the victim recognizes the abuse and removes themselves from the situation for their physical, emotional and psychological health. If this doesn’t happen, the adverse effects become increasingly more significant.
Adverse Effects of Domestic Violence
Physical injuries occur in at least 42% of women and 20% of men who remain in domestic violence situations. More severe injuries can occur when the abuse is frequent or particularly harsh, but some of the most common physical indications include bruises, lesions, cuts, headaches, back pain, broken bones, pregnancy complications, gynecological injuries, sexually transmitted diseases, gastrointestinal disorders, heart and/or circulatory conditions, etc.
Emotional abuse can occur in situations where there is also physical abuse or it can occur without apparent physical abuse. Regardless of whether the abuse is best described as physical, emotional or verbal, it can result in severe psychological consequences in the victim and others in the household witnessing the abuse. Common psychological effects include anxiety, suicidal behavior, depression, loss of hope for the future, inability to trust, low self-esteem, sleep disturbances, flashbacks, inability to concentrate, fear of intimacy, etc.
In addition to the negative effects noted above, there are also social effects of living with domestic violence. The negative social effects are often the thing that actually restricts the victims in their ability to leave the situation and often include: control of access to services intended to provide assistance to the victim, strained relationships with employers, health care providers and other authority figures who could essentially provide assistance, isolation from loved ones or other support system, etc.
What is Domestic Violence in Arizona
Many people have heard the term domestic violence but do you really know what is domestic violence in Arizona.
Domestic violence is misunderstood in many Arizona divorce and child custody cases.
If the court finds significant domestic violence has occurred or that a significant history of domestic violence exists, the court may award sole custody of children to the victim of that domestic violence
Many divorce and child custody cases hinge on whether domestic violence occurred.
So, what is domestic violence in an Arizona child custody case?
It may surprise you that a spouse can be a bad person who does very bad things to you but, despite that fact, has not committed an act of domestic violence.
It may also surprise you to hear that a counselor or self-professed “domestic violence expert” should not be permitted to give an opinion in court whether an act or series of acts constitute domestic violence because that determination calls for a conclusion of law that may only be decided by a judge.
Definitions of Domestic Violence in Arizona
The Arizona Court of Appeals in the published case of Engstrom vs. McCarthy answered the question of what is domestic violence in Arizona.
The trial court, in that case, awarded mother sole custody after finding the father had committed significant acts of domestic violence against the mother.
Father appealed that decision and the court of appeals overturned the trial court’s finding that father committed domestic violence against mother.
At trial, Mother testified Father had done some pretty bad things to her, including Father allegedly coercing Mother into participating in online sexual activity, having sex with prostitutes, threatening to have affairs or leave Mother if she didn’t sexually gratify him, driving by Mother’s work to ensure she was there, and manipulating the children to further control Mother.
Furthermore, Mother used a “domestic violence expert” at trial.
The “expert” testified that she was an expert on domestic violence and that the acts Mother claimed Father had done to her constitute domestic violence.
The Arizona Court of Appeals found that an expert’s declaration of what he or she believes constitutes domestic violence is not legally binding on the court.
Stated differently, it is for the court to decide if acts testified about in a divorce trial constitute domestic violence based upon the statutes the define domestic violence in Arizona.
The Court of Appeals found that in Arizona, the legislature has defined a list of what acts constitute domestic violence.
If the acts complained of in a child custody trial do not fit in the statutory definition of domestic violence they are not acts of domestic violence no matter how otherwise reprehensible those acts may be.
In Arizona, all domestic violence offenses are defined by statute; specifically, Arizona Revised Statute Section 13-3601.
Mother attempted to argue that the concept of what constitutes domestic violence was a nebulous concept that is constantly evolving and can take many forms.
The Court Appeals concluded that it agreed domestic violence can take many forms but found that neither statutes or case law defines domestic violence as a nebulous concept subject to ad hoc facts, particularly when a parent’s fundamental rights to the care, custody, and control of their children are at stake.
The Court of Appeals remanded the case back to the trial court to allow the trial court to consider all the testimony to determine if Father’s conduct met the statutory definition of domestic violence as those offenses are outlined in that statute.
If not, it doesn’t matter how reprehensible father’s conduct may have been – it wasn’t domestic violence.
The following list outlines all of the acts that are considered domestic violence in Arizona:
- Negligent Homicide
- Second Degree Murder
- First Degree Murder
- Threatening or Intimidating
- Aggravated Assault
- Custodial Interference
- Unlawful Imprisonment
- Sexual Assault
- Unlawful Disclosure of Pictures Depicting State of Nudity or Specific Sexual Activity
- Criminal Trespass
- Criminal Damage
- Interfering With Judicial Proceedings
- Disorderly Conduct
- Cruelty to Animals
- Preventing the Use of a Telephone to Make an Emergency Call
- Use of Electronic Communication to Terrify, Intimidate, Threaten or Harass
- Surreptitious Photographing, Videotaping, Filing or Digitally Recording or Viewing
- Abuse of a Child or a Vulnerable Adult
If the conduct of a parent does not meet all of the legal elements of the offenses described above, the acts do not constitute an act of domestic violence in Arizona and cannot be the basis for a trial court finding that a parent committed an act of domestic violence in Arizona.
Many people’s belief that a person who commits reprehensible acts is a perpetrator of domestic violence.
That is simply not true. It may make him or her a very bad person, but they do not meet the criteria to be found as a perpetrator of domestic violence in Arizona.
If you have questions about domestic violence and divorce in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your divorce or family law case around today.
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