Domestic Violence

Domestic violence, sometimes called “family violence,” is a problem cutting across all classes of American society. It is surprisingly common, usually by men against women, and usually rooted in the exercise of power and domination by a stronger person against a weaker person. Victims often experience guilt and self-blame, which is part of the syndrome of domestic violence, and blaming the victim is often a response by abusive spouses when they are confronted about their conduct. It is considered highly damaging to children even when not directed against them. Children exposed to it tend to repeat that behavior in their own lives, and even those who don’t often suffer psychological problems that extend well into adulthood.

Since 1985, Nevada has had legislation in place making available Orders for Protection Against Domestic Violence. In 1991, as part of the creation of the Family Court system, the law was changed to make those orders available through the Family Court.

A Temporary Protective Order, or “TPO,” may be issued if certain acts constituting domestic violence have occurred: a battery; an assault; compelling the other by force or threat of force to perform an act from which he has the right to refrain, or to refrain from an act which he has the right to perform; a sexual assault; a knowing, purposeful, or reckless course of conduct to harass the other; a false imprisonment; or unlawful entry of the other’s residence, or forcible entry against the other’s will if there is a reasonably foreseeable risk of harm to the other from the entry.  Here is a flowchart of the steps to obtain a TPO.

However, such an order is only available if, in addition, the parties have one of a limited number of relations to one another: spouse or former spouse; any other person to whom one is related by blood or marriage; person with whom one is or was residing; person with whom one has had or is having a dating relationship; person with whom one has a child in common; or minor child or minor child of any of the persons listed above. A sexual relationship is not required. The statute applies to roommates or former roommates of the same or opposite sex, or parents subject to violence or threats from their children.

The initial, temporary order can be obtained ex parte (without advance notice to the other party) if an emergency situation exists. No attorney is necessary; the applications and forms are available at the Clark County Family Court, and assistance is available to assist with their completion. Nothing prohibits the assistance of counsel either, of course.

The initial TPO can: Prohibit further acts of domestic violence by the adverse party, directly or through an agent; Exclude the adverse party from the applicant’s place of residence; Prohibit the adverse party from entering the residence, school or place of employment of the applicant or the applicant’s minor child and order him to stay away from any specified place regularly frequented by them; grant temporary custody of a minor child; and order other relief as the court deems necessary in an emergency situation.

If the victim communicates specific facts that an act of domestic violence has occurred or has been threatened, and the alleged perpetrator is in custody, the court may grant a protection order via telephone/facsimile. The court will confirm that the perpetrator is in custody, and the order will be sent via facsimile to the detention facility where law enforcement must personally serve the perpetrator with the protection order. In Clark County, this service is available 24 hours a day, seven days a week.

In any event, an ex parte temporary protective order is limited to no more than 30 days. However, if an application is made for an extended order before the temporary order expires, the temporary order can continue in effect until the extended order hearing is held.

Either party has the right to request that the protective order be extended, modified, or terminated, in which case a hearing must be held so that both parties can be heard. That hearing must be held within 45 days. The accused party may apply for a hearing to contest either the granting or the terms of a protective order on two days’ notice to the party who obtained the order, which application must be heard “as expeditiously as the ends of justice require.” Once that hearing has been held, however, the protective order can be extended for up to an additional year.

The extended order may order any of the things that the initial TPO ordered, but it may also: Specify visitation between the adverse party and a minor child of the parties and, if necessary, require supervision of the visitation; Order the adverse party to avoid or limit communication with the applicant or a minor child of the parties; Order the adverse party to make rent or mortgage payments or pay for the support of the applicant or minor child if the court finds the adverse party has a duty to support the applicant or the minor child; and Order the adverse party to pay all costs and fees incurred by the applicant in bringing the action.

In any court case involving the custody of a child (divorce, paternity, etc.), the court must consider “whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.” If that finding is made, a rebuttable presumption arises that the perpetrator should not have sole or joint custody of the child.

In cases in which there is a history of abusive conduct, visitation terms can contain safeguards for the children and the victim, including supervised exchanges, specific conditions of visitation (such as a prohibition against the use of alcohol or drugs), or supervised visitation.

The Family Mediation Center has special protocols for the protection of the victim spouse in any services provided by the agency in which there is a history of domestic violence.

The statutes require the arrest of the person against whom the order issues, if a law enforcement officer witnesses a violation of that order. Contempt sanctions also may be issued for its violation, and any violation of a TPO is a misdemeanor criminal offense. These procedures are available regardless of whether anyone has filed for divorce.

However, there is a specific crime of domestic violence violating a restraining order issued in a divorce action. Upon conviction, the criminal court can punish the batterer for violation of a misdemeanor and sentence the batterer to up to six months in jail, fine the batterer $1,000, and require a minimum of 200 hours of community service in lieu of fine. The court may also require the batterer to reimburse the victim’s attorney’s fees and costs as well as medical expenses of the victim or a minor child incurred due to the batterer’s violence. Finally, the court may order the batterer “to participate in and complete a program of professional counseling, at his own expense, if such counseling is available.”

WILLICK LAW GROUP is sensitive to the needs of all affected persons when domestic violence is present in a case that we handle. We urge our clients to be totally forthright with us regarding any such history, from the time of the initial consultation forward, and we clearly explain all available options given the facts of the case. Where domestic violence has occurred, it must be squarely addressed and resolved; physically, legally, and economically; as part of the meaningful completion of the client’s case.

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