October is National Domestic Violence Awareness Month. Domestic violence is a serious issue and, unfortunately, it is not uncommon for domestic violence issues to be present in divorce cases. Whether you are seeking a divorce or not, when you are experiencing domestic violence, the first thing to consider is your safety, which is even more important when you have children. www.Phoenix.gov/law/victims/domestic-violence/resources-and-referrals will provide phone numbers, advocacy center contact information, legal services locally and nationally, along with other resources that may assist you.
In Maricopa County, the issue of domestic violence is very important and often has a tremendous impact on the divorce process. One of the first things you will likely want to consider, after you are able to ensure your safety, is obtaining an Order Of Protection (“OOP”), which last year became effective for two years. Then, assuming you are moving forward with a divorce, you will need to discuss with your attorney what you need to start rebuilding your life safely. If you have children, this will include a parenting plan that ensures the safety of the children as well.
If you do not have children and the divorce process will allow for you to separate and move forward without any need for interactions, then the most important part is to navigate the divorce process in a manner that protects you and eliminates risks. Having an attorney will prevent the need for you to communicate directly with your abuser and allows the attorney to act as a shield against further abuse, which may include using the Court to issue Orders protecting you. Finally, an attorney can help you finalize the divorce in a manner to ensure that everything is complete, thereby eliminating any lasting issues that would force you to further engage with the abuser.
If you have children, an attorney can still provide some of the assistance outlined above, but as the other parent will likely have some parenting time access, special considerations will need to be made to safely facilitate exchanges. In custody cases, the court has to consider the best interest of the children. The best interest factors are outlined in A.R.S. 25-403. As part of that consideration, the court must consider A.R.S. 25-403.03, which directly addresses domestic violence and child abuse. If the court determines that there is domestic violence, the statute expressly provides “The Court shall consider the safety and well-being of the child and of the victim of the acts of domestic violence to be of primary importance” (see A.R.S 25-403.03(B). It is important to note under A.R.S. 25-403.03(D), if a parent shows there has been an act of domestic violence that creates a rebuttal presumption against the parent that committed the act, the abuser is not to be awarded sole or joint legal decision-making; the presumption does not attach if both parents committed acts of domestic violence.
If you are in a relationship with a person who has committed an act of domestic violence, and you wish to seek a divorce, it is important that you provide your attorney - or the court if you are not represented - with the evidence necessary to show acts of domestic violence. The court must weigh this evidence to determine, per statute, whether or not an act of domestic violence occurred; and if it has, the court must consider that evidence in making a determination as to the best interest of the children. This is a very important decision that can have a dynamic impact not only on the divorce process, but on the future co-parenting relationship after the divorce is finalized.
Blog post content by Castle Law, LLC lawyer, Jason Castle
Jason Castle is a family lawyer who specializes in high-conflict cases. He's also a former prosecutor & social worker. Hear his latest divorce thoughts!