Tag: Domestic Violence & Custody

Punishment and Domestic Violence

When does child discipline cross the line between punishment and domestic violence? It is a frequent child custody issue which can impact parental rights and timesharing. After a Colorado ski vacation, two parents found out how Florida courts look at punishing your teenager for marijuana, theft, and ingratitude.

Punishment Domestic Violence

Rocky Mountain High

The two Florida parents divorced in 2018. About four years after their divorce, a domestic violence injunction was filed by the mother against the father on behalf of their fourteen-year-old daughter. The Mother alleged in her petition that the father had punched the daughter; grabbed her by the hair, and then sat on his daughter. Worse, while sitting on top of her, the father continued to punch and slap his daughter.

At the trial, the Father testified that he and his daughter had just returned from a Colorado ski vacation during the winter holidays. When they returned, his daughter had given him a pair of socks as a gift. Either very suspicious, or just unhappy with his gift, the father suspected the gift socks were stolen.

The father searched the daughter’s room to see if there were other stolen items. In her backpack from the ski trip to Colorado, the father found marijuana, a pipe, and a vape pen. Colorado, remember, became the first state in the U.S. to sell legal recreational marijuana for adult use. The father announced he was going to punish the daughter for stealing, lying, and possessing marijuana and a vape pen by taking away her most cherished item, her phone.

The daughter refused to give the father her phone, obviously, and they ended up tussling over it. At some point, the daughter snapped the father’s finger back and broke it.

The father refused to return her phone, and the daughter threw a metal thermos and an orange juice bottle. Father denied punching her, pulling her hair, or sitting on her. The daughter told the neighbor she had gotten into an argument with her father but did not need the neighbor to call the police.

The daughter then went back to the father’s house. The neighbor testified the daughter did not seem fearful to return to her father’s house. She then came back to the neighbor’s house and asked for a ride to the mother’s house. During the car ride, the neighbor did not see any physical injuries on the daughter

The mother testified she saw a bruise on the daughter’s back, leg, and arm. The mother took pictures of the bruises. A Child Protection Investigator testified there were “no indicators of mental or physical injury because the parties were deemed as mutual combatants.” The CPI observed “a little black and blue” on the daughter’s shoulder and arm but no bruising or marks. The guardian ad litem for the child also testified, and said it was a mutual combatant situation, and “absolutely 100 percent inappropriate.”

The trial court found there was competent substantial evidence that the daughter is in fear, and granted the injunction for six months. Father appealed.

Punishment in Florida

I’ve written about spanking and custody before. In Florida, parents have a right to discipline their child in a reasonable manner. Florida has strong laws for the protection against domestic violence. Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says:

“Whoever spares the rod hates their children, but the one who loves their children is careful to discipline them.”

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child. Harm, by the way, does not mean just bruises or welts. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but sitting on your child, punching her on the floor and pulling her hair is not. While there are some limited privileges for discipline, there are major risks to your custody case, your domestic violence case, and most importantly, to your children.

The High Court

The argument by the father on appeal was that the altercation between he and his cellphone addicted teenage daughter was nothing more than the father exercising his right to discipline his child. He argued his actions were appropriate physical discipline, rather than an assault, battery, aggravated assault, or aggravated battery.

There was also no history of domestic violence by the father toward the daughter or evidence that would give her a reason to believe she was about to be subjected to domestic violence. The injunction was based solely on the one post-Colorado ski trip incident between a father and his teenage daughter in which he physically wrenched the cellphone from her.

The 4th DCA reversed. The father’s physical and verbal actions in taking away the daughter’s cell phone was a form of physical discipline, not corporal punishment. The appellate court ruled that even if it was punishment, it was not excessive corporal punishment because the daughter refused to surrender her phone, and there was no evidence of disfigurement or significant bruising on the child.

The opinion is available here.

Injunction for Posting Negative Comments

Family law frequently involves domestic violence. Can a court enter a domestic violence injunction against former partners or spouses and prohibit posting negative comments on social media about their ex-spouse? A former married couple from Arizona just found out.

Arizona Injunction

Monumental Decision

The former husband asked a court for a protective order against his former wife. He complained that she was stalking his community, delivered his personal information to people in his community, was on his porch looking through the front window, blasted him on social media and harassed his friends and family for a year.

The trial court determined that she had committed the offense of harassment and granted the order of protection. Because of the videos on a social-media platform, the trial court added a directive that the former wife “shall not post” messages about him on the internet or on social media.

The former wife also testified, and she provided a copy of the article she and others had been interviewed, which accused the former husband of having committed stolen valor and other deceitful acts. She also admitted that she had shared the article with others.

Her defense was she had intended only to warn others of his alleged wrongdoing. She denied having trespassed on his property; she admitted having driven past his home, but maintained she could see into the windows from the street.

At the end of the hearing, the court found that her disclosure of negative information about him to third parties amounted to harassment, and an act of domestic violence. The former wife appealed.

Florida Domestic Violence

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also mean harassment. Harassing means engaging in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.

Cyberstalking is another form of harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Injunction Valley

Valley of Decision

On appeal, the Arizona appellate court agreed with the former wife. that the court misapplied the definition of harassment, and that her actions were “directed at” her former husband.

A court must enter an order of protection if it determines that the “defendant has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period.”

Harassment in Arizona can include contacting or causing communication with another person, following another person after being asked by that person to desist, surveillance of another person, making false reports to police or credit agencies for example.

But the appellate court found that the former wife neither made nor attempted contact with her ex as is required. They were “directed at” the third parties, not at him. The court concluded that her actions do not satisfy the domestic violence statute, and that the trial court abused its discretion by determining otherwise. The court vacated the domestic violence injunction.

The Arizona Court of Appeals opinion is here.

Divorce and Domestic Violence

Police in California are investigating whether a “tumultuous divorce” was the reason a father is accused of murdering his still-missing 5-year-old son. What is the link between divorce domestic violence?

Aramazd Andressian Sr. was arrested on Friday and set to be arraigned this week — allegedly executed a “pre-planned” killing of little Aramazd Andressian Jr., investigators said in a news conference. The boy was last seen after midnight April 21 at Disneyland in Anaheim with his dad, prompting an ongoing months-long search.

Andressian had intended to take his own life before he was found hours later passed out in South Pasadena’s Arroyo Park, Los Angeles County Sheriff’s Department officials said.

Police initially charged him with child endangerment and child abduction, but a lack of evidence allowed him to walk free from jail a few days later. Authorities arrested Andressian in Las Vegas Friday because they feared he would flee the country, they said Monday.

Florida Domestic Violence

Injunctions for protection against domestic violence are critical to the safety of many. I’ve written about domestic violence before. Anyone scanning the headlines in the Miami Herald knows that the horrors of domestic violence are all too real:

“Dania Beach man arrested in fatal shooting of girlfriend”

Miami Herald, Aug. 12, 2015

“Miami Gardens man held in fatal shooting of ex-girlfriend”

Miami Herald, June 25, 2015

“Man Charged with Murder After Killing Girlfriend . . .”

Miami Herald, May 17, 2015

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

When discussing family or household members, Florida law defines these to mean spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.

In Florida, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further abuse. 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.

Signs of Domestic Violence

While there are many signs, you may be experiencing domestic violence and not even realize it. For example, if your partner is doing any of these or other unwanted behaviors, you may be a victim of domestic violence:

  • Using your children against you
  • Calling you names and hurting you emotionally
  • Harming your pets
  • Acting with extreme jealousy and possessiveness
  • Isolating you from family and friends
  • Threatening to commit suicide or to kill you
  • Controlling your money
  • Withholding medical help
  • Stalking you
  • Hiding assistive devices
  • Minimizing the destructive behavior

Is there a link between divorce and domestic violence? Many believe that divorce can be a triggering event for domestic violence.

In fact, the danger of serious violence may be at its highest point when a person acts on a decision to leave an abusive relationship.

The California Case

The man, who’d dyed his hair and shaved his beard, was exhibiting behavior inconsistent with that of a grieving parent, police said. A detective cited “a tumultuous divorce that they were going through at the time” as a potential motive for the apparent killing.

“My heart is shattered and I will miss my son immensely each and every second of every day for the rest of my life,” Aramazd’s mother, Ana Estevez, said in a statement.

The grieving mom went on to use the little boy’s nickname: “Picqui was everything great in my life, and I cannot imagine the emptiness and the void that I will bear until we are together again someday,” she said. If convicted, Andressian faces 25 years to life behind bars.

The CNN story is here.

 

Divorce, Separation & Domestic Violence

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Thursday, August 13, 2015.

Injunctions for protection against domestic violence are critical to the safety of many. But they also represent a court system which can be easily abused as a tactical advantage in a custody case.

I’ve written about domestic violence before. Anyone scanning the headlines in the Miami Herald knows that the horrors of domestic violence are all too real:

“Dania Beach man arrested in fatal shooting of girlfriend”

Miami Herald, Aug. 12, 2015

“Miami Gardens man held in fatal shooting of ex-girlfriend”

Miami Herald, June 25, 2015

“Man Charged With Murder After Killing Girlfriend . . .”

Miami Herald, May 17, 2015

However, because they are easy to obtain, restraining orders are misused, usually against men, but sometimes against women too.

When someone has an injunction against violence issued against him, many automatically think that they are an abuser, and injunctions also force you to leave the home, stay away from a partner, and your children.

In order to obtain an injunction against domestic violence, you must prove you are in imminent danger of becoming the victim of domestic violence. In addition to an injunction prohibiting domestic violence, Florida law allows for other types of injunctions as well, including:

Repeat violence injunctions, when two incidents of violence or stalking

Sexual violence injunctions, for certain criminal sexual acts are committed.

Dating violence injunctions, available to protect those who have a “continuing and significant relationship of a romantic or intimate nature” from violence.

Injunctions are issued ex parte, which means the accused has no notice of the proceedings and does not have the opportunity to defend themselves prior to its issuance.

Far too many people use injunctions to gain a strategic. One study found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true.

However, the filing of a false domestic violence injunction can also backfire. In the event your injunction is dissolved, and it is demonstrated that it was filed falsely, that could be evidence in a custody battle.

Every day it seems the Miami Herald has a story about domestic violence. The results are tragic. Conversely, many people abuse the system. Domestic violence injunctions are a part of family law and divorce cases to consider carefully.