Benavidez Law Blog

Domestic Violence & Family Law

    Family law proceedings encompass actions for divorce, paternity, post- divorce/paternity decree actions, and litigation involving custody of a child or child support.  Sadly, domestic violence is also often an issue in family law proceedings.  Below is an account of the impact domestic violence has on different aspects of family law.

    Domestic violence does not have an impact on the property distribution in a proceeding for divorce in Arizona.  Arizona is a no-fault divorce state, which means that the Court cannot consider the behavior of one or both spouses in granting a divorce.  Instead, the Court will grant a divorceif the marriage is irretrievably broken, and the distribution of property proceeds in accordance with the principles of community property law.  The concept of community property is premised on the idea that property acquired by the community is owned equally by the spouses, and that the community property is therefore subject to an equitable (usually equal) division at divorce.  Domestic violence, adultery, and other fault-based concepts are not considered in the property distribution at divorce.

    Domestic violence is also not a factor in determining if a spouse is entitled to an award of spousal maintenance.  Spousal maintenance in Arizona is governed under A.R.S. 25-319.  A spouse must meet at least one of the qualifications enumerated in Part A of the statute in order to be considered for a maintenance award.  The qualifications in Part A do not include domestic violence and are instead focused on the ability of the spouse to be self-supporting, contributions to the education of the other spouse, and the length of the marriage.  

    However, in the event that a victim of domestic violence meets one of the threshold requirements for spousal maintenance listed in A.R.S. 25-319(A), domestic violence may be considered by the Court in determining the amount and duration of the award of maintenance.  A.R.S. 25-219(B)(13) allows the Court to consider "[a]ll actual damages and judgment from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim."  Therefore, if the domestic violence charges result in a conviction, the domestic violence may be relevant in determining the amount/duration of the spousal maintenance award.

    Domestic violence is relevant in cases involving the custody of a child.  A.R.S. 25-403.03 states that "joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence."  Domestic violence is presumptively against the best interests of the child, as a history of domestic violence clearly impacts the safety and well-being of the child. In order to determine if significant domestic violence has occurred so that an award of joint legal custody is inappropriate, the Court must consider all relevant factors, including findings from other courts, police reports, medical reports, reports generated by CPS or a domestic violence shelter, witness accounts, and school records.  See A.R.S. 25-403.03. 

    If the Court determines that a parent committed an act of violence against the other parent, there is a rebuttable presumption that an award of custody to the perpetrator is against the child's best interests (provided that both parents have not committed acts of domestic violence).  A.R.S. 25-403.03.  For purposes of this statutes, domestic violence is defined as "[i]ntentionally, knowingly or recklessly causes or attempts to cause sexual assault or serious physical injury"; acting in a manner that "[p]laces a person in reasonable apprehension of imminent serious physical injury to any person;" or engaging "in a pattern of behavior for which a court may issue an ex parte order to protect the other parent who is seeking child custody or to protect the child and the child's siblings." A.R.S. 25-403.03.  The statute also enumerates factors that may allow the perpetrator parent to rebut the presumption against joint legal custody.

  Domestic violence also impacts parenting time between the children and the perpetrating parent.  If a parent is found to have committed an act of domestic violence, that parent has the burden or proving "that parenting time will not endanger the child or significantly impair the child's emotional development" prior to spending time with the child.  A.R.S. 25-403.03.  The Court may also impose restrictions associated with the parenting time, such as requiring that the parenting time be supervised by a neutral party, that exchanges of the child be supervised, drug/alcohol testing, or counseling.

    Finally, domestic violence is not a consideration in determining the child support obligation.  Instead, child support depends on the respective monthly gross incomes of the parties, the amount of time spent with the children, and other factors such as the payment of medical insurance for the children and daycare expenses.

Domestic Violence Information and Resources

 What is Domestic Violence?

    Domestic violence is a violent confrontation between members of the same family or household that involves physical harm, sexual assault, or fear of physical harm.  These episodes are often repeated, tend to escalate over time, and are designed to intimidate, manipulate, and control the victim.  Domestic violence occurs among people of all races, ages, socio-economic backgrounds, occupations, and religious affiliations.  These behaviors are not attributable to drugs, alcohol abuse, or the behavior of the victim.  Domestic violence is against the law in the state of Arizona.

    Domestic violence is a serious problem in the United States.  In fact, domestic violence is the leading cause of injury to women between the ages of fifteen and forty-four in the United States - more than car accidents, muggings, and rapes combined.  See "Violence Against Women, A Majority Staff Report," Committee on the Judiciary, United States Senate, 102nd Congress, October 1992, p. 3.  Three to four million women in the United States are beaten in their homes each year by their husbands, ex-husbands, or male lovers.  "Women and Violence," Hearings before the U.S. Senate Judiciary Committee, August 29 and December 11, 1990, Senate Hearing 101-939, pt. 1, p. 12.  Furthermore, about one out of every four women are likely to be abused by a partner in her lifetime.  Sara Glazer, "Violence, Against Women" CO Researcher, Congressional Quarterly, Inc., Volume 3, Number 8, February, 1993, p. 171.  There is no reason to believe that these statistics are any better in Arizona.  In fact, domestic violence is often correlated to stress, so it is likely that domestic violence is becoming more prevalent in today's difficult economic times.

Warning Signs

    Many behaviors are considered to be warning signs of domestic violence or domestic abuse.  Physical behaviors indicative of domestic violence include hair pulling, biting, shaking, pushing, pinching, choking, kicking, confinement, slapping, hitting, punching, using weapons, forced intercourse, unwanted sexual touching in public or in private, and deprivation of food or sleep.  Emotional abuse is also associated with domestic violence, and includes such behaviors as insults in public or private, putting down friends and family, making the victim feel bad about him/herself, calling names, playing mind games, making the victim think s/he is crazy or guilty, humiliation, treating the victim like a servant, and making all of the big decisions for the household without input from the victim.  Economic abuse is another warning sign.  Economic abuse includes preventing one person from being employed, making the victim ask for money, taking the victim's money, giving the victim an allowance, denying access to family income or demanding exclusive control over household finances, and not consulting the victim about important financial decisions. 

    Coercion and threats are also associated with domestic violence and include such behaviors as threatening to leave or to commit suicide, threatening to harm the victim, children, or pets, or to force the victim to engage in illegal actions.  Intimidating behaviors, such as brandishing weapons, destroying property, dangerous driving, abusing pets; and isolating behaviors, such as limiting outside contact by any means, are also common.  Batterers also often engage in blaming actions, such as claiming that the victim is over-reacting, the victim caused the behavior, accusing the victim of being unfaithful, or denying that the incident occurred.

What to Do if You are a Victim

    1.    Call 911.  Report the incident, and keep the report number with other important records.

    2.    Seek medical treatment if necessary.  Have any injuries photographed and documented.

    3.    Go to a safe place.

    4.    Talk to someone you care about.  Seek the support of your loved ones to cope with the abuse.

If You Are a Victim & Want to Leave

    You deserve to live a life free of abuse.  If you choose to end an abusive relationship, there are several steps you can take to protect yourself and the children.  If you remain in the residence you previously shared with your batterer, change the locks on the windows and doors of the residence.  Install motion sensor lights outside.  Alert neighbors or landlords that you have ended the relationship and ask them to notify you and the police if they spot your batterer close to your residence.  Contact your child's school/daycare to notify them that the batterer is not to pick up the child.  Obtain an Order of Protection that prevents the batterer from contacting you.  Notify your place of employment and share pictures of your batterer so you will be informed if your abuser tries to contact you at work.  Ask another person to walk with you to your vehicle or bus stop, and vary your routes home.

    In the event that a confrontation between you and your batterer is inevitable, move to a room or area with an exit.  Always avoid the kitchen, bathroom, or a room containing weapons.  Prepare for the confrontation before it occurs, even if you do not think such an event will happen.  Ask your neighbors to call the police if they hear a disturbance, and devise a code word to share with family and friends that will alert them that you are in trouble and require assistance.  Keep a bag packed and hidden in a readily accessible place, and devise a plan for where you will go if you must flee the residence.  If you are in a dangerous situation, consider giving the batterer what he wants so you can escape without harm.

    If you decide to leave the situation, plan carefully to increase your safety.  Batterers often lash out when they believe that the victim is leaving the relationship.  Think about where to go when you leave.  Take important documents and items with you, such as your identification, driver's license, birth certificate, and social security card.  Also take these items for your children, as well as their school and vaccination records.  Take money, credit cards, welfare identification, work permits, Green Cards, passports, and important legal documents such as your divorce papers or Order of Protection.  Take your keys to your vehicle, home, and workplace, bank papers, an address book, and items with sentimental value to you or your children. 

Resources in Tucson

    You are not alone.  Several agencies and hotlines in Southern Arizona are there to assist victims of domestic violence.  Law enforcement and emergency medical services can always be reached by dialing 911.  Other resources are listed below:

Arizona Child Abuse or Neglect Hotline: 1-888-SOS-CHILD or 1-888-767-2445

Arizona Coalition Against Domestic Violence: 1-800-782-6400

Boys Town National Hotline: 1-800-448-3000

Brewster Center Crisis Hotline: 520-622-6347

Casa Amparo Crisis Hotline: 520-746-1501

Children's Crisis Services: 520-628-5241

Help on Call Crisis Hotline: 520-323-9373

National Domestic Violence Hotline: 1-800-799-7233

Parents Anonymous of Arizona Hotline: 1-800-352-0528

Regional Behavioral Health Services: 1-800-771-9889

Tohono O'odham Tribe (Sells, Arizona): 520-383-6300

Tohono O'odham Victims Witness: 520-383-4590

Southern Arizona Center Against Sexual Assault: 520-327-1171

Tucson Centers for Women and Children: 520-795-4266

    Several agencies also operate safe houses or domestic violence shelters.  The Brewster Center, Tucson Centers for Women and Children, and Casa Amparo all operate safe houses and can be reached at the above-listed numbers.  Casa de los Ninos is a shelter exclusively for children and can be reached at 520-624-5600.  Open Inn may be reached at 520-323-0200; Our Town Family Center at 520-323-1706, and the Salvation Army at 520-622-5411.  Other resources may be available through your place of worship.

Good luck, and stay safe.

This articles relied on information obtained from the Clark County Prosecutor's Office (http://www.clarkprosecutor.org/html/domvio/domvio.htm),  and the Tucson Centers for Women and Children (http://www.tucsoncenters.com/resources.htm).