Legal System Education

Understanding the Legal Aspects of Domestic and Intimate Partner Violence

Key Terms

Intimate Partner Violence (IPV)

 

The specific term used to describe violence in a relationship. An intimate partner is a person with whom you have or had a close personal or sexual relationship.

Domestic Violence (DV) 

 

Refers to any form of violence that occurs within a household. These relationships include household relationships such as spouse/spouse, parent/child, elder/child, etc.

Dating Violence 

 

Refers to any form of violence that occurs within a dating relationship. Dating violence primarily impacts younger populations, but it is in no way limited to a certain age group.

Domestic Violence

Defining Domestic Abuse 

The Arkansas code (A.C.A 16-81-113) defines "Domestic abuse" as:    

(1) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or  

(2) Any sexual conduct between family or household members, whether minors or adults, which constitutes a crime under the laws of this state.  

"Family or household members" means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, any children residing in the household, persons who presently or in the past have resided or cohabited together, and persons who have or have had a child in common.  

Domestic Violence Warning Signs 

Does your partner: 

  • Act jealous or possessive towards you? 

  • Refuse to let you have other friends? 

  • Check up on you? 

  • Have a quick temper? 

  • Have extreme mood swings? 

  • Blame others for his or her problems, feelings, or behavior? 

  • Always have to be in control? 

  • Have unrealistic expectations of you or the relationship? 

  • Get serious too fast? 

  • Manipulate you? 

  • Refuse to accept breaking up? 

  • Become violent with you or others? 

If you answered “yes” to any of the above questions, it might indicate the presence of an abusive relationship. If you fear for your physical safety or your life, you may need to obtain an Order of Protection. 

Orders of Protection

What is an Order of Protection? 

An order of protection is a court order designed to keep the respondent (the abuser) away from the petitioner (the victim). There are two types of protection orders: temporary orders (i.e., ex parte orders), and permanent orders. The first type, a temporary order of protection, is a step towards getting a permanent order of protection. 

Temporary Order of Protection 

A Temporary Order of Protection is a court order designed to provide the petitioner with immediate protection from the respondent. When a petitioner requests an order of protection, a judge may issue a temporary order of protection that same day if s/he believes that the petitioner is in immediate danger or if the respondent is scheduled to be released from prison within 30 days, and the petitioner may be in danger following the release. “Ex parte” means that the order is issued without the respondent present. 

 

After the judge issues the temporary order, the respondent must be served. It is the responsibility of the local Sheriff’s Office to serve the respondent.  The order is not in force until and unless the respondent has been served.  For this reason, you MUST include the respondent’s current home or work address on the order. The temporary order of protection stays in effect until the court hearing determining whether to grant a permanent order takes place. This hearing usually occurs within 30 days of the ex parte order’s issuance. 

Final Order of Protection 

A Final Order of Protection is like a temporary order, but it lasts longer and can be issued only after a court hearing takes place where the petitioner and the respondent both have the opportunity to tell their own side of the story. To have the hearing, the respondent must be served with the ex parte order of protection. Both parties must be present at the hearing. The judge can still issue a permanent order of protection if the respondent is not present but has been served. Permanent orders last for at least 90 days and at most 10 years. The petitioner may ask the court to extend the order just before it expires if s/he still feels in danger. The court may extend the order if it finds that the threat of domestic abuse still exists. The court will not issue an order sua sponte, meaning that it won’t extend the order without a request to do so. 

 

It does not cost anything to file for an order of protection. Although the petitioner does not need a lawyer to get an order of protection, it may be to his/her advantage to find a lawyer to protect his/her legal rights, especially if the respondent has obtained a lawyer.

 

To obtain a Final Order of Protection, the petitioner must prove that the respondent has committed acts of domestic violence (as defined by  Arkansas law) against the petitioner or the petitioner’s minor children. A violation of an order of protection may result in criminal charges by the circuit judge who issued the order. The first violation is a misdemeanor, carrying a maximum penalty of one year in jail, and/or a fine of up to $1000.00. 

Who can get an Order of Protection? 

(A.C.A 5-26-302) 

  • A spouse or former spouse 

  • A parent or child 

  • Persons related by blood within the 4th degree 

  • Any minor child residing in the household 

  • Persons who live together or have lived together 

  • Persons who have or had a child in common  

  • Persons who are dating or have dated in the past  

  • An employee or volunteer of a domestic violence shelter or program on behalf of a minor, including a married minor.  

Restraining Order 

A Restraining Order prevents one spouse from harassing the other or disposing of marital property in a divorce. Law enforcement does not arrest one party for violating a restraining order. 

No-Contact Order 

A No-Contact Order is usually issued by a criminal court in criminal cases against an abuser as a condition of release from jail.

How to File an Order of Protection

1) Go to the nearest court to obtain and file the petition 

To file an order of protection in Arkansas, go to the county courthouse in the county where you live, where the abuse took place, or where the respondent may be served (given paperwork related to the case). 

  • In Washington County, go to the Washington County Circuit Clerk’s Office and meet with the Domestic Relations Specialist. 

  • In Madison County, go to the Civil Clerk of Court and ask for a petition for an order of protection. 

  • In Benton County, go to the Benton County Prosecutor’s Office and meet with the Victim Advocate. 

Clients of Peace At Home Family Shelter may request that a Court Advocate help them file for an order of protection.  

Check and re-check the document to make sure that all appropriate lines are marked.  Do not sign the petition until in the presence of the clerk or clerk’s representative. 

2) Bring identification and information about the respondent 

It is sometimes helpful to bring the following information about the respondent: 

  • A photo  

  • Respondent’s date of birth (required) 

  • Address of residence and/or employment (required) 

  • Phone number 

  • Vehicle description and plate number 

  • History of drugs or gun ownership 

Remember to also bring some form of personal identification (a driver’s license or other identification that includes the victim’s picture). 

3) Fill Out the Petition 

Remember to be specific when filling out the petition. 

  • Include the reasons why you are asking for the court’s protection, listing the specific acts of domestic abuse that took place in the past year (You may be able to include events that took place more than a year ago if the abuser was out of state, incarcerated, or if there is a good cause). 

  • Write briefly about the most recent incidents of violence, using descriptive language. Use specific words such as “slapping,” “hitting,”  “grabbing,” “threatening,” “strangling,” etc., when appropriate. Include details and dates if possible. 

  • List any previous court actions you’ve taken against the respondent. 

  • State whether any past or current orders of protection have been issued against the respondent. 

  • Provide an accurate physical description of the respondent, and give a valid home or work address where s/he can be found and served with the order. If you do not know the respondent’s address, you can provide potential addresses where s/he may be found. 

  • Make a note if the respondent is currently in jail or in police custody. If s/he is, the order may be served there. 

  • Check and recheck the document to make sure that all lines are appropriately marked. Do not sign the petition until the clerk or clerk’s representative is present. 

Your home, work, and any other identifying address may be kept confidential if the respondent does not know them. However, you do have to give the Court a mailing address so that you may be contacted if there are future hearings. If you are staying at a shelter, give a post office box number instead of a street address. 

 

*Note: There are no initial fees or service costs for getting an order of protection.  

 

The court, clerks of court, and the law enforcement agencies cannot require you to pay any initial filing fees or service costs. Additionally, Arkansas law enforcement agencies cannot charge you a fee associated with serving an order of protection on a respondent.        

4) A judge reviews your petition 

You will be assigned to a judge who will review the completed petition and determine eligibility. You will be granted a temporary order of protection if the judge finds that: 

  • The petitioner is in immediate and present danger of domestic abuse OR 

  • The respondent is scheduled to be released from prison within 30 days, and there will be an immediate and present danger of domestic abuse when s/he is released.  

The judge may schedule a hearing in his/her court to be held within 30 days of the date of filing the petition. S/he may also issue a temporary order of protection, which will remain in effect until the hearing if the aforementioned criteria is met. 

5) Make sure the ex parte order is filed and that copies are delivered to the local sheriff’s office 

If the judge does award a temporary order of protection, it must be filed with the circuit clerk. Then, file-marked copies of the order must be given to the local sheriff’s office so the respondent can be served. In some counties, the clerk’s office will provide law enforcement with copies of the order. In other counties, such as Washington County, the petitioner is responsible for taking the copies directly to the local sheriff’s office. If the respondent is located in another county, your local sheriff’s office will coordinate with the sheriff’s office in that county to make sure the respondent is served. 

6) Contact an attorney, or call Legal Aid of Arkansas at 1-800-952-9243 or 479-442-0600 

Your chances of being granted a permanent order of protection may improve if you have an attorney representing you at the hearing.  Legal Aid of Arkansas provides low-income Arkansas residents with free legal services in civil (non-criminal) cases.  If you qualify for their services, Legal Aid may be able to provide you with an attorney to represent you at the hearing. If you are working with Peace at Home Family Shelter and do not qualify for Legal Aid assistance, you must let the Court Advocate know as soon as possible.

7) Attend the court hearing 

You MUST attend the court hearing. If you do not go to the hearing, your temporary order may be dismissed, and you will have to start the process over. In some counties, the petitioner can be found in contempt of court for failing to appear at the hearing.  It also may be harder for the petitioner to get an order of protection in the future. If you absolutely cannot go to the hearing,  contact the court clerk immediately and ask how to receive a continuance for a later court date. 

The respondent will have the opportunity to attend the hearing. If s/he does not show up but has received notice of the hearing, the court may issue a “default judgment,” and the petitioner may still receive an order of protection against him/her.

 

If the respondent did not receive notice of the hearing and does not show up, the judge may order a new hearing date and extend the temporary order. If the judge does not extend the temporary order, you should request that s/he do so before you leave the hearing or as soon as possible afterwards since the temporary order will be set to expire that same day.  Occasionally, when the respondent has not been served, the judge will dismiss the case “without prejudice,” meaning that the petitioner may re-file for another order of protection. 

How do I check to see if a protection order has been served? 

In Washington County, you may call the Civil Process Department Clerk during business hours
Monday through Friday from 8:00 am to 4:30 pm at (479) 444-5782 or (479) 444-5783 and ask if the order has been served.

During all other hours, you will need to call the Washington County Sheriff’s Office at (479) 444-5700. 
 

How do I check to see if a detainee has been released? 

In Washington County, detainee records are handled by the Records Department. You can contact the Records Department Monday through Friday from 8:00 am to 4:30 pm at (479) 444-5788 or (479) 444-5788.

 

Alternatively, you may call Arkansas’ VINE victim notification program at 800-510-0415 to be alerted when a detainee is released. 

Preparing for an Order of Protection Hearing

Before the hearing 

Getting an attorney to represent you is a good idea, especially if you believe the respondent will challenge custody or child support if you have been severely injured or if you expect the injury to last a long time. If possible, meet with your attorney before the hearing to complete any necessary legal representation documentation and discuss the case. Show your attorney any evidence you have against the respondent, including photographs of injuries, phone records, text messages, medical records, or police reports. This way, your attorney can plan to introduce the evidence at the hearing. Your attorney can also let you know what kinds of questions s/he will ask so that you can be prepared.

 

It is important that you take into account the following: 

  • Do not bring your children to the hearing.  Make arrangements in advance for someone to look after them. 

  • Be prepared to spend all day in court (there may be hearings before yours). 

  • Review and be familiar with your petition before the hearing. 

  • Stick to the facts; don’t ramble when offering evidence to support your request. 

  • Tell the truth (you are under oath).  Lies can result in perjury charges and may also injure your case.   

Arrive 20 to 30 minutes early 

Check-in with court staff and inform the bailiff of any concerns related to your safety in the courthouse.    

  • You may request to wait in a separate area from your abuser if you prefer. 

  • Enter the courtroom and have a seat in the room's rear if possible. If the abuser sits next to you, you have the right to take another seat and receive help from the court staff to keep the abuser away from you.

A neat appearance in court is important 

Some things to avoid wearing 

  • tank tops 

  • low cut tops 

  • short skirts 

  • t-shirts 

  • revealing or tight-fitting outfits 

  • wrinkled clothing 

  • flip-flops 

A neat appearance shows respect for the court. If you do not have proper clothing, let your advocate know; they might be able to provide you with a thrift store voucher.

What to bring to your hearing 

  • Dated pictures of any visible injuries 

  • Police reports relating to the abuse 

  • Medical and hospital records 

  • Witnesses to the abuse 

  • Printouts of threatening text messages 

  • Printouts of phone records to show harassing phone calls 

  • Anything else that you believe will show that the respondent abused you 

  • Household objects torn or broken by the abuser 

  • Pictures of your household in disarray after an episode of domestic violence 

  • Tapes of calls you may have made to 911 

  • Certified copies of the abuser’s criminal records 

  • If you are asking for child support, bring any information you have on the respondent’s current income (e.g., a pay stub or last year’s income tax return) 

  • Notes (if you fear you may leave out important information during your testimony) 

What you may want to mention when you testify 

  • The last two incidents of violence 

  • The worst two incidents of violence 

  • Whether the respondent has a gun or other  

  • weapons 

  • Whether the respondent has threatened to physically hurt or kill you. 

What to expect in an Order of Protection Hearing  

  • Stand when the judge enters or leaves the room. 

  • Sit down only after the judge or the clerk instructs you to do so. 

  • At the hearing, everyone who testifies will swear to tell the truth. You need to know that you will be testifying at the hearing and be prepared to tell the court everything that has happened and why you need the order of protection. 

  • Usually, the judge or bailiff will announce your case. 

  • Do not speak unless spoken to by the judge. 

  • The judge will ask you questions. If you don’t understand a question, say so. Don’t answer until you fully understand the question. If you don’t know an answer, say so. Do not be afraid to admit that you don’t know something. 

  • Speak directly to the judge, not the respondent. Be extremely respectful to the judge.  When addressing the judge, use “Your Honor.” When addressing the attorneys, use “Mr.” or “Ms.” and the attorneys’ last names. 

  • Stay calm.  Never argue with the judge or with the other side. Do not lose your temper.  This may destroy your credibility and damage your case. If you are afraid to talk to the judge, it is okay to ask your attorney to speak on your behalf. 

  • Be direct with the judge.  The judge will not appreciate evasiveness. 

  • Be courteous. Never interrupt the judge or anyone else during the hearing. Stop speaking instantly if the judge interrupts. Take note of what needs to be clarified so you won’t forget.     

  • Be sincere.  Don’t be sarcastic or appear argumentative with the judge or the opposing side. 

  • Be serious in the courtroom.  Avoid jokes and wisecracks. Testifying is a very serious matter and is not to be taken lightly. 

  • Speak clearly using words, phrases, and terminology that you understand and are able to explain when asked. 

  • Keep your hands away from your mouth, and do not chew gum. Speak clearly and loudly so the judge and the court reporter can hear you.  Always answer verbally so your answer can properly be recorded.  Avoid making gestures such as nodding your head to indicate your answer. 

  • You will tell your side of the story first. 

  • The judge and the respondent (or the respondent’s attorney, if s/he has one) may ask you questions about your testimony.  This is known as “cross-examination.” 

  • If neither of you has an attorney, you and the respondent will each have the opportunity to question each other after your testimony. You will also have an opportunity to question each other’s witnesses.    

  • After all of your witnesses are finished, the respondent will tell his/her side of the story. It may be very different from yours. The judge, or your attorney, if you have one, may ask him/her questions. 

  • The judge will make a decision after hearing both sides and considering the evidence. 

  • If the judge issues the order of protection, you will be given a copy of the order. Review it carefully before leaving the courthouse. If you have ANY questions, be sure to ask the judge. 

Leaving your hearing 

Right after your hearing, you should: 

  • Have a safety plan for leaving the courthouse. Leave before the respondent. 

  • Don’t wait around, and do not leave at the same time as the respondent. Have someone escort you to your car and wait with you until you are safely inside the car. 

  • Review the order of protection.  Ask the clerk to correct the order before leaving if something is wrong or missing. 

  • Keep a copy of the order with you at all times. 

  • Leave copies of the order at your workplace, home, the children’s school or daycare, in your car, with a sympathetic neighbor, and with anyone else who you may think should have one. 

  • Inform your employer, advocate, minister,   family members, and /or closest friends that you have an order of protection in effect.  

What if the abuser violates the Order of Protection? 

It is a crime and contempt of court for the abuser to knowingly violate a provision of the order in any way. A violation of the order is a class A misdemeanor, which carries a maximum penalty of one (1) year imprisonment in the county jail, a fine of up to one thousand dollars ($1000.00), or both. A.C.A 9-15-207 

 

If the abuser violates the order of protection: 

  • Call the police or sheriff’s department immediately if the abuser violates the order of protection.  Even if you think it is a minor violation, you must report the incident and show law enforcement a copy of the protection order.  

  • Make sure you have a copy of the order with you at all times. 

  • It is important to recognize the limitations of the order of protection. An order is only helpful if it is enforced, which is why it is critical to report every violation of the order to the police. 

  • Ongoing safety planning is important after receiving the order. You can do a number of things to increase your safety at home, work, and school.  (See pages 18-20 GET LINK) 

In some cases, the abuser can be arrested immediately without a warrant. If the police are not involved, or if they do not arrest or file a criminal complaint against the abuser, it is a good idea to write down the name of the responding officers and their badge numbers in case you want to follow up on the case.    

What if I am not granted the Order of Protection? 

If your order of protection was not granted, you may be able to reapply for another order of protection if there is new evidence to show the court that domestic violence did occur. You may also reapply if a new incident of domestic abuse occurs after the order is denied.    

  

Keep in mind:  

At this hearing, you may ask for temporary possession of the shared residence, temporary custody of minor children (if they have been a witness to or a part of the violence), and/or temporary child support or spousal support.  The court may also award temporary visitation. If you have concerns about the minor children’s safety while visiting with the respondent, you should come to court with an alternate plan for visitation.   

  

Most likely, some visitation will be awarded, so be prepared to offer the judge an acceptable alternative if safety is an issue. The courts will typically not consider issues concerning the division of property at this time, other than the return of personal items, such as clothing.  The court may also abstain from ruling on custody issues and allow the couple to go to family court for such issues. 

Court Safety Plan 

  1. Arrive at court 20 to 30 minutes early. 

  2. If possible, take a car that the respondent is not familiar with. 

  3. Bring a friend, relative, or an advocate, but leave the children at home unless they are scheduled to testify. 

  4. Carry only the essential items. Leave anything that you do not need in the car, such as your cell phone. 

  5. Take a few minutes to become familiar with your surroundings (e.g., the exit signs, stairs, elevators, and the bailiff). 

  6. If you are apprehensive that the respondent may exhibit violent tendencies, please inform the bailiff. 

  7. Work out a signal or code word with your companion to use if you need police assistance.  

  8. Pick a seat as far away from the respondent as possible. 

  9. If the respondent sits next to you, politely move to a different area or signal the bailiff to come over to handle the situation. Do not get angry or mad, and do not speak to the respondent at any time outside the presence of the judge (i.e., only when the respondent is questioning you on the stand or when you are questioning the respondent while s/he is on the stand).   

  10. If you are represented by counsel, the respondent and/or the respondent’s lawyer should only speak to your lawyer or you in the presence of your lawyer. 

  11. Request that the respondent be held while you leave the courthouse first. If s/he leaves first, then s/he can hide around the corner and follow you.  

School Safety Plan 

  1. Take a copy of your order of protection to your child’s school. This is especially important if your child is included in the order of protection. 
  2. Take a recent picture of the abuser to the school’s resource officer. If you don’t have one and the abuser was recently arrested, you can obtain one from the county webpage/detainee photos. 
  3. Inform the school that NO ONE is allowed to pick up your child from school unless the school speaks to you first.  
  4. Have a list and pictures of individuals that are allowed to pick up your child from school.  
  5. Have a word or passcode the trusted individual must know in order to pick up your child. If possible, do not discuss the code with the child, as he or she could tell the abuser. 
  6. If you drop the child off at school or if the child walks to school, vary the routes so that the abuser is not familiar with the child’s daily pattern. 
  7. If your child does not have a cell phone, equip him/her with change to be able to make a phone call. 
  8. Speak to your child about what s/he should do if the abuser attempts to pick him/her up from school.  Inform your child to tell his/her teacher and have the teacher call you. 

Home Safety Plan 

  1. Once the order of protection has been granted, change the locks to your house or apartment. 

  2. Always keep your purse, car keys, and cell phone within reach. Develop a habit of keeping your keys, cell phone, and purse in the same place. Do not leave your purse in an obvious place.  The abuser may anticipate this and grab it first. 

  3. Have an exit plan and route (e.g., escape through the backyard and everyone meet across the street).  

  4. Talk to your kids about where they should go and what they should do if the abuser approaches them while you are not with them. 

  5. Have an area in the house that you and your children know they can go to if the abuser is in the house and there is no chance of fleeing the house.  This could be a bathroom with a lock, an attic with a lock, or a closet with a lock. 

  6. Stock this area with a flashlight, a first aid kit, and a blanket. 

  7. Park in well-lit areas, and avoid taking the trash out at night.  

  8. Inform your nearest neighbors about your order of protection.  This may encourage the neighbors to call the police if they see strange activity, such as someone prowling outside your house.   

Divorce

Divorce

A spouse must be a resident of the state of Arkansas for at least 60 days prior to filing for the divorce.  Getting a divorce in Arkansas takes a minimum of 30 days from the date the complaint is filed.  If the court discovers that it does not have jurisdictional rights to hear the case, the case will not be accepted or will eventually be dismissed. 

  

The proceedings shall be in the county where the complainant resides unless the complainant is a nonresident of the State of Arkansas and the defendant is a resident of the state, in which case the proceedings shall be in the county where the defendant resides, and, in any event, the process may be directed to any county in the state. A.C.A. 9-12-301 and 9-12-303 

 

Grounds for Filing 

To be divorced in Arkansas, you must prove that you have grounds for divorce. The grounds for divorce in Arkansas are: 

  • Impotency at the time of and during the marriage 

  • Conviction of a felony or infamous crime 

  • Habitual drunkenness for one year 

  • Cruel and barbarous treatment 

  • General indignities 

  • Adultery 

  • Separation by reason of insanity for three years 

  • Failure to support  

The only way the court may grant a no-fault divorce is if you and your spouse have lived separate and apart from each other for eighteen (18) continuous months without cohabitation. The most commonly used grounds for divorce in Arkansas is “general indignities,” which means that your spouse has treated you with such indignities as to make your condition intolerable. 

Restoration or Name Change 

In all cases when the court finds that either party is entitled to a divorce, the court may restore the wife to the name that which she bore prior to the dissolution of the marriage.  

Spousal Support 

Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially on a temporary or permanent basis is decided on a case-by-case basis as agreed upon by the parties or at the court’s discretion. 

 

When a decree is entered, the court shall make orders concerning the alimony of the wife or the husband and the care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case. Unless otherwise ordered by the court or agreed upon by the parties, the liability for alimony shall automatically cease upon the earlier of: 

 

The date of the remarriage of the person who was awarded the alimony 

 

The establishment of a relationship that produces a child or children and results in a court order directing another person to pay support to the recipient of alimony, which circumstances shall be considered the equivalent of remarriage 

The establishment of a relationship that produces a child or children and results in a court order directing the recipient of alimony to provide support to another person who is not a descendant by birth or adoption of the payer of the alimony, which circumstances shall be considered the equivalent of remarriage. 

 

Child Custody 

When minor children are involved in a divorce, the Arkansas courts will do everything possible to help lessen the emotional trauma that the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion. 

  

The judge will base the decision for visitation based on many factors related to the child's best interest.  Some of the factors that will affect this decision include moral fitness, stability, love and affection, the children, and any special needs that the child may have. 

  

For moral fitness, a judge will consider both parents' integrity, character, compassion, and habit of sobriety, as well as any religious training parents provide to the children, the attitude of any newly acquired partner, and acts of domestic violence. Courts frown upon any drug use and excessive alcohol use, as well as a parent living with any person to whom they are not married. 

  

When considering stability, the courts look at the living arrangement and frequency of moves of both parents, as well as which parent is more likely to allow frequent contact with the other parent. 

  

When considering love and affection, the judge will look at the attention given to children, discipline, each parent’s attitude toward education, and general social attitude, as well as who has been the children's primary caregiver. If you have been the children’s primary caretaker, then you may be awarded primary custody of them in the divorce. 

  

The judge may also consider which parent the child may want to live with, depending on the age and maturity of the child. Other factors the court considers in determining custody are children’s age, sex, and any health conditions. 

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