publications - family law
What is Domestic Violence?
Domestic violence means any act which is a dangerous crime where:
- The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
- The victim and the defendant have a child in common.
- The victim or the defendant is pregnant by the other party.
- The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
- The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person of the opposite sex who resides or who has resided in the same household as the defendant. A.R.S. § 13-3601(A).
Crimes that qualify as dangerous crimes are set forth in A.R.S. § 13-3601(A):
- Crimes against children (A.R.S. § 13-604.01),
- Endangerment (A.R.S. § 13-1201),
- Threats and intimidation (A.R.S. § 13-1202),
- Assault (A.R.S. § 13-1203),
- Aggravated assault (A.R.S. § 13-1204),
- Custodial interference (A.R.S. § 13-1302),
- Unlawful imprisonment (A.R.S. § 13-1303),
- Kidnapping (A.R.S. § 13-1304),
- Trespass (A.R.S. § 13-1502 through § 13-1504),
- Criminal damage (A.R.S. § 13-1602),
- Disorderly conduct (A.R.S. § 13-2904),
- Stalking (A.R.S. § 13-2923),
- Harassment (A.R.S. § 13-2921 ),
- Child or vulnerable adult abuse (A.R.S. § 13-3623),
- Use of a phone to terrify, intimidate (A.R.S. § 13-2916), and
- Interference with judicial process, (A.R.S. § 13-2810).
What can a victim do legally about Domestic Violence?
When domestic violence occurs, the victim may file a petition for an order of protection in the superior or justice court. A.R.S. § 13-3602. However, if a divorce is in progress, the order of protection must be obtained through the superior court in which the divorce is pending. Once the victim obtains an order or injunction, he or she must serve the order or injunction on the other party. The other party then has the right to request a hearing on the order or injunction. If the other party requests a hearing, then the victim will be notified so that he or she can appear. If the victim does not appear, the order or injunction will be dismissed. Hearings are only set in those cases where the defendant requests a hearing. A defendant can request a hearing any time during the six months that the order or injunction is in effect. So, it is very important that the court have a current address and if possible, a current phone numbers.
If the victim does not want her address known by the other party, then the court typically will seal the victim's address and not allow the other party access to that information. The victim should keep a certified copy of the order with him or her to show the police if the other party violates the order.
What is an Injunction against Harassment?
An injunction against harassment is a ruling from the court that can prevent the defendant from committing a violation of one or more acts of harassment and/or contacting the plaintiff or other specifically designated persons from coming near the residence, place of employment or school of the plaintiff, or other specifically designated persons. The court can also grant other relief as necessary for the protection of the victim and other specifically designated persons as is proper under the circumstances. A.R.S. § 12-1809.
Should I get an Order of Protection or an Injunction against Harassment?
An order can grant exclusive use of the home, order counseling and prohibit the possession of firearms. Injunctions cannot. They can, however, do the same things that an Order of Protection can; that is, prohibit a person from contacting you, other people and order the defendant to stay away from certain locations.
How do I get the forms to do this?
Every court is required to supply you with the forms for either the injunction or order. Contact the court in which you wish to file and inquire as to how you can pick up the forms. The requirements and procedure for an Injunction against Harassment can be found at A.R.S. § 12-1809. The requirements and procedure for an Order of Protection can be found at A.R.S. § 13-3602. Forms are available online at www.cityoftucson.org/courts/How_To/Order_of_Protection/order_of_protection.html
Do I need to bring any documents with me when I file for an Injunction or Order?
No, however, some information is helpful, such as the name, date of birth, and address of the defendant, the date of birth of any person that you are asking to be included within the protection of the Order/Injunction, and any prior case numbers or arrests.
How much does it cost?
A Protection Order is free to file and free to serve. An Injunction Against Harassment is free to file but the petitioner must pay for service. These fees can be waived or deferred if you cannot afford to pay them. The court has the forms to ask for the fees to be waived or deferred. The following link provides information on costs for filing in the Superior Courts of Arizona: www.supreme.state.az.us/fees/04FEESC.htm.
How long will the Injunction or Order last?
It is effective six months from the date the papers are served on the defendant.
Can I get an Order of Protection that includes my children?
There are limited situations when children can be included on Orders of Protection. The child must be involved or harmed in the domestic violence incident. Superior Court through the Domestic Relations Division is the appropriate court to handle visitation/custody issues.
What if I need an Order or Protection when the court is closed?
The legislature has mandated that both Pima and Maricopa County have a judge on call for evenings and weekends to issue Emergency Orders of Protection (EOP). A.R.S. § 13-3624. Other counties or courts may voluntarily supply this service. The EOP form is supplied by the Superior Court for use by a law enforcement officer. Once the Sheriff's Office is contacted by the law enforcement officer, the call will be transferred to the judge on call. The judge will ask the law enforcement officer to summarize the events. Again, only certain relationships and crimes qualify. They are listed in A.R.S. § 13-3601. Once the judge says issue the order, the officer must ask three more questions: Is the judge granting exclusive use of the home, are other people being included for protection by the order, and are firearms being prohibited. Law enforcement may have to supply the judge with additional facts to determine if any of those three terms should be included. The law enforcement officer will add this information to the spaces provided on the form for this information. The judge will then tell the law enforcement officer the date the order expires (5:00 P.M. of the next business day), the judge's name, and the judge's court. The law enforcement officer will add this information to the spaces provided on the form for this information. The law enforcement officer will call the Sheriff's Office to obtain the EOP number. The law enforcement officer will serve the defendant if present or leave all original and copies with the plaintiff/victim. Another officer can be called when the defendant's location is known so that the EOP can be served. Lastly, the original with the completed Certificate of Service (it does not have to be notarized) is filed with the Superior Court Clerk's Office. To make the Order permanent the plaintiff must go the issuing court the next working day and file a protection order petition, the court will review the petition and generally issue an Ex Parte Order of Protection. A copy of the petition and the order shall be served on the defendant within one year from the date the order is signed. An Order of protection that is not served within one year expires. An order is not effective until served. Once it is served the defendant has the right to request a hearing on the matter.
If a Domestic Violence offender is put in jail, will the victim be safe?
Victims should be aware that even if the misdemeanor was committed in the officer's presence and the officer arrested the defendant, the person could bail out of jail pursuant to a bail schedule without seeing a judge. (All courts are required to have bail schedules for people to be able to bond out of jail before court.) Conditions would not be placed on the defendant's release for the protection of the victim.
What if I need to change a location or add a person to an Order or Injunction?
You must go to court and file a modified Petition. After the modified Order/ Injunction is granted, it must be served on the defendant to have the new terms valid. The old Order/Injunction is valid until the new one is served.
If an Order or Injunction is modified (changed), how long will the new one last?
An Order/Injunction is effective for six months from the original date of service of the papers on the defendant. So if the Order/Injunction was modified (changed) after one month and served on the defendant, the modified one would be effective for five month.
How Does Domestic Violence Affect Dissolution of Marriage Proceedings?
A Preliminary Injunction is automatically issued whenever a Petition for Dissolution of Marriage is filed. The injunction orders that neither party molest nor harass the other. A.R.S. § 25-315. However, when one of the parties still uses violence against the other, the usual procedure is to obtain a temporary restraining order to exclude the other from the residence. A.R.S. § 25-315 (C) . Some lawyers advise their clients to live elsewhere until the court hearing.
In regards to child custody, the court will consider evidence of domestic violence as being contrary to the best interests of the child. If the court finds that domestic violence has occurred, the court shall make arrangements for visitation that best protect the child and the abused spouse. A.R.S. § 25-403.
Where can I learn more about domestic violence?
You can find out more about domestic violence at the following web sites:
- Arizona Supreme Court's Domestic Violence Information Page - www.supreme.state.az.us/dr/dv/dv.htm
- Arizona Coalition against Domestic Violence - 800-782-6400