What is domestic violence and domestic abuse?
Domestic violence and abuse can happen to anyone: men, women and children. The military distinguishes between “domestic abuse” and “domestic violence.” In both cases, the relationship between you and your abuser must be one of “intimate partner.” This means your spouse or ex-spouse, someone you have a child with, or someone you lived with as if you were married. Domestic abuse involves emotional/psychological abuse, economic control, or interference with personal liberty. Domestic violence involves the use, attempted use or threatened use of force. How it is legally defined depends upon state law.
For more information, see the Military OneSource website on child and domestic abuse.
Where can I get help?
If you are being abused, you are not alone. You can get help. Every state has a network of domestic violence projects. They may provide emotional support, safe housing, counseling, safety planning, and advocacy.
- To find help in your area: https://www.domesticshelters.org/
- Or call the National Domestic Violence Hotline: 1-800-799-SAFE (7233). They can refer you to your local agency.
- For emergency help, call 911.
- If you are outside the U.S. you can contact the American Domestic Violence Crisis Line by calling the local AT&T operator in that country and asking to be connected to 866-USWOMEN.
The military has also developed systems to help victims of domestic violence. Whether you are stateside or overseas, you can contact your Family Advocacy Program (FAP). This program works with both victims and abusers. Click here for more information on the Family Advocacy Program (FAP)
You can also ask for Military Protection Order to be ordered against your abuser. To do this, you would contact your abuser’s unit commander, explain the situation, and request a MPO. It will be up to the unit commander to decide if he or she will issue an MPO against your abuser.
Except for the military chaplain, anyone in the military that you talk to and tell about abuse will not be confidential.
What state laws help me?
All states give legal protections to victims of domestic violence. A victim can go to civilian court and ask for protection from her or his abuser. You do this by starting a civil action in civilian court, asking for a restraining or protection order. What the order is actually called will vary by state. Here, these orders will be referred to as protection orders. State laws will include:
- who can file for a protection order
- the definition of abuse that must be proved by you to get a protection order
- what can be included in an order and
- the length of a protection order.
Every state has criminal laws that address abuse. The name of the crime may or may not have “domestic violence” or “domestic abuse” in the title. Again, these laws will vary by state. You can file a criminal complaint with your local police or law enforcement agency. After the police complete an investigation, they will refer it to the local District Attorney’s office. It will be up to the local District Attorney Office, not you, to decide if criminal charges will be brought. If charges are brought, the State (who is represented by the District Attorney’s office) will bring the case against your abuser. You are the victim, who may have to testify. You are not one of the parties to the court case like you are in a civil protection order case.
This piece will only focus on civil protection orders.
Where do I file for a civil protection order?
Where you file for a protection order depends upon where you live, where the servicemember lives and/or where the abuse occurred. If you both live on a military installation and the abuse occurred there, you are limited to seeking an order through the military. If you live off of a military installation or if the abuse occurred off of the military installation, you can file in the civilian court where you live.
How do I get a civil protection order?
To start the process of getting a protection order, you must file the court paperwork with the civilian court. Under federal law, you should not have to pay any filing or service fee for a protection order case you start in court. You will be the Plaintiff, and your abuser will be the Defendant in the case. A hearing will be scheduled. Your abuser will be served with the paperwork you filed, along with a date and time for a final hearing. In some states, you may be able to get an “ex parte” order when you file your paperwork. This means you can get a temporary, emergency order given to you before the final hearing and without the person abusing you knowing that you went to court for a protection order.
The Hearing Day:
At court on the day of the hearing, one of three things is likely to happen.
1) The person abusing you does not show up even though he/she was served with the paperwork and hearing date. You will get a default judgment if you followed the Servicemembers Civil Relief Act (SCRA), and your abuser did not ask for a stay (postponement) of the hearing because his or her military service affected his or her ability to participate in the hearing. To learn more about the SCRA, read here (link – Stephen Lynch currently reviewing). A default judgment will give you the order you ask for even though your abuser did not go to court.
2) You and the person abusing you agree to a final Order and all the terms of that Order.
3) The person abusing you goes to Court and does not agree to an Order. The court will hold a hearing. You must prove that you have been abused, as “abuse” is defined under the state law. It is a civil not a criminal case. You need to prove by a “preponderance of the evidence” that you were abused. This means more likely than not. Evidence includes your testimony, the abuser’s testimony, and witnesses for each of you. Many times, it is only you and the abuser who testify in a hearing because no one else has witnessed the abuse. The person abusing you can cross-examine you and your witness. If he or she has an attorney, the attorney will ask the questions. You have the right to cross examine your abuser and his/her witnesses. At the end of the hearing, the Judge will make a decision about whether you proved abuse. If the Judge finds you were abused, a final protection order will be issued. What is included in that order will depend on what that state law allows? If the Judge finds you did not prove that you were abused, your request for a final order will be denied.
Since you do not know what your abuser will do at court, you should be prepared for a hearing on that day.
Do I need a lawyer?
In many states victims can get orders without the help of a lawyer. Many domestic violence agencies have advocates who will go to court with you. They are usually not lawyers. You can contact your local domestic violence agency to learn more about what services are available to you. Every state also has free civil legal services programs. Many of these programs prioritize domestic violence and will provide you with a free lawyer. Click here to find out if you are eligible for services from your local legal services office. You can also hire an attorney to represent you if you do not want to go to court alone.
What is included in a civil protective order?
A protection order will address a number of issues between you and your abuser. What can be ordered depends upon state law. You may want to contact your local domestic violence agency to learn more about what your state law allows for in terms of relief to you. The local legal services office may also be able to help you understand what you can ask for in a protection order.
Issues that are typically addressed in a protection order include:
- Contact restrictions against the abuser (communicating with you, following you, etc).
- Possession of a shared home
- Personal property
- Children, if you have a child with the abuser
- Support for you and/or your children
Depending upon state law, other issues, such as access to weapons, possession of pets, mandatory counseling, etc., may be included in the order.
Can I enforce a civil protection order on base?
The power of a protection order is making sure it is enforced. It is important to know that there is a federal law that says a protection order that is issued by a civilian court in one state (or tribal court) is enforceable in another state or tribe. So, if your abuser lives in a different state from where the protection order was issued, the order is still effective against him or her.
If you have a protection order and the Defendant is not following it, there are ways to enforce it. A federal law makes it so civil orders are enforceable on military installations. There may also be a “memorandum of understanding” between the civilian and military law enforcement and prosecution agencies that address the protocol for enforcing civilian orders on military installations. You can contact your local law enforcement agency to find out if a memorandum of understanding exists.
If the Order is not being followed, you should contact the local law enforcement agency. It is possible that your abuser will be charged with a crime of violating the order. It depends on state law. Also, you may be able to bring your abuser back to civilian court, asking that he or she be found in contempt of the protection order. You can also contact the servicemember’s commanding officer to inform him or her that you have a protection order. You can notify him or her that the servicemember is not following the protection order. It will be up to the commanding officer to decide if he or she will take any action against the servicemember.
Can a civil protective order affect the abuser’s right to have a firearm?
Yes. The Federal Gun Control Act of 1968 automatically prohibits certain persons from possessing a firearm and/or ammunition. One of those categories of people who cannot possess a firearm and/or ammunition include a person who:
- has a court order, like a protection from abuse order, against him or her that he or she was notified of and had a chance to participate in a court hearing, and
- the court found that the Defendant is a credible threat to the physical safety of his or her intimate partner or child, or
- the Order explicitly prohibits the use, attempted use or threatened use of force against an intimate partner or child that would reasonably be expected to cause bodily injury, or
- the Order restrains such person from harassing, stalking, or threatening an intimate partner or child of an intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.
An intimate partner is a spouse, ex-spouse, person who you have a child with or someone you lived with as if you were married.
If your order has any of this language, then your abuser cannot possess a firearm or ammunition for the length of the order. Possession means in his or her control or where he or she has access to it (in a car, home, friend’s car, house, etc.) Because this is a federal law, it applies in every state.
There is an exception to this law. Members of the Armed Forces and federal and state (including at the local level) law enforcement personnel who require a firearm for duty may be able to possess one only while on duty and not at other times.
This exception does not apply if:
- your protection order has a specific term that prohibits your abuser from possessing a firearm. That is because that prohibition is allowed for under state law, and the federal exception does not apply to state laws, or
- the servicemember’s commanding officer orders the servicemember not to possess a firearm, even during duty. Such an order is not grounds for military discharge. But, if the servicemember disobeys the commanding officer’s order, he or she can be disciplined. Depending upon the severity of the servicemember’s action, discipline could include a court martial, where discharge is sought.
Can I stay in military housing?
If you are not the servicemember, and you and your partner live in military housing, you will have to leave. You will have 30 days from the day you and your partner separate to move. It does not matter if your partner moves out (for example, to the barracks), you will still have to leave military housing within 30 days.
Am I eligible for other military benefits as a spouse of a servicemember because of abuse?
You may be entitled to the Transitional Compensation Program (TCP), which includes cash payments to you, TRICARE health insurance and commissary/exchange privileges. TCP can last for 12 – 36 months. To be eligible, your servicemember spouse must have been on active duty for at least 30 days. He or she must be administratively discharged from the military under the reason of “dependent abuse.” You cannot reunite with your spouse or marry someone else while receiving TCP.
You may want to get advice and support from your nearest domestic violence agency. They can help you decide what steps you want to take:
- contact the police to file a criminal complaint
- seek a civil protection order
- seek a military protection order, and/or
- contact the servicemember’s commanding officer.
Original source link: http://statesidelegal.org/domestic-violence-victims-and-survivors