Domestic violence is considered a criminal offense which is dealt with through criminal courts. However, there are times where domestic violence can overlap with pending family court proceedings, such as separation and divorce or child custody and access.
Domestic Violence in Family Courts
Unless the victim files a formal complaint with the police and initiates criminal proceedings, domestic violence in family courts will be treated differently. First and foremost, the court and judge do not have the power to punish the defendant, even if they believe the defendant is guilty.
Rather, family courts concentrate on resolving issues between the victim and defendant that relate to a breakdown in the family unit. Common issues resolved by family courts include:
- How marital property is divided.
- Who the minor children will live with (i.e., custodial parent).
- What type of access and visitation the noncustodial parent will have.
- How much child support the noncustodial parent should pay.
- Modifications to existing court orders regarding child support, child access and visitation, and so on.
When domestic violence is part of family court cases, the court generally reviews evidence and testimony presented by both parties. The defendant can file counter-claims or even make it appear as though the victim is really at fault.
The objective of family courts is to ensure minor children are not put in the care of a potentially violent parent. Beyond that, there is little they can do to punish the defendant.
Domestic Violence in Criminal Courts
With criminal courts, things are entirely different. Once the victim has filed a formal complaint, he or she can seek a restraining order against the defendant. A restraining order helps protect the victim and any minor children.
In addition, the police and the prosecutor’s office will determine if there are sufficient grounds to bring charges against the defendant. Even if the victim later changes his or her mind, the charges are not automatically dropped. Rather, the case will proceed, and the outcome will be determined in a criminal court of law.
If the defendant is found guilty of the offense, he or she could be sentenced to jail and have the charge recorded on his or her criminal record. Additionally, if there was a temporary restraining order in effect, a judge could convert it into a final restraining order, which never expires unless the judge removes it.
If there are pending cases in both family court and criminal court, the outcome in criminal court could potentially affect child custody and access rights in family court.
What Type of Legal Representation Is Required?
Another key difference between family courts and criminal courts is the type of lawyer each party can retain to represent their interests. Neither party has to retain a lawyer and can represent themselves. However, in family court matters involving domestic violence, it is a good idea to be represented by a family law lawyer.
In criminal court, defendants can also represent themselves without a lawyer, but this is never a good idea. It is better to retain the services of an experienced domestic violence defense lawyer. Victims, on the other hand, do not need criminal defense lawyers, as their interests are protected by the prosecuting attorney.
If you have been charged with criminal domestic violence in New Jersey, contact the criminal defense law firm of Keith Hirschorn, P.C. in Jersey City and Hoboken by calling 201-798-4444 for a free consultation today!