A Practical Primer on Protection from Abuse Law, 0516 ALBJ, 77 The Alabama Lawyer 172 (2016)

Author:Kelly F.McTear.
Position::Vol. 77 3 Pg. 172
 
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A Practical Primer on Protection from Abuse Law

Vol. 77 No. 3 Pg. 172

Alabama Bar Lawyer

May, 2016

Kelly F.McTear.

Introduction

On January 1, 2016, amendments to Alabama's Protection from Abuse Act1 went into effect. These changes follow on the heels of substantial amendments in 2010. The remedies available to victims of domestic violence in this section are still largely unused by private attorneys representing victims despite the growing attention to the problem in media and public discourse.

Statistics estimate that one in three women and one in seven men in the United States have been physically assaulted by an intimate partner at some point in their lifetimes.2 The odds are substantial that most attorneys will be confronted with a family member, acquaintance, employee or potential client who is being abused by a loved one. A basic understanding of the remedies available can be instrumental in protecting these victims from further injury, fear or harassment and could save lives.

Alabama law addresses domestic violence with criminal and civil remedies. Domestic violence is both a misdemeanor offense and a felony in Alabama, depending on the circumstances of the crime.3 Civil remedies under the Alabama Protection from Abuse Act are also available. A judge once described the interplay between the criminal and civil avenues by likening them to a sword and shield. The sword (criminal prosecution) exists to punish the abuser for their past abusive actions, and the shield (a Protection from Abuse Order) exists to protect the victim from future abuse. Thus, the two areas work together to provide a well-rounded response to domestic abuse where, in many cases, one response would be insufficient by itself.

This article explains the Protection from Abuse Act currently in effect and examines situations in which a Protection from Abuse Order (PFA) might be useful to a client who is also a victim of domestic abuse.

Protection from Abuse Petitions

PFAs are essentially narrowly-tailored restraining orders. They are available to victims of crime who have one of a list of qualifying relationships with the perpetrator of that crime. Ex parte relief may be granted, and upon a hearing, that relief, along with specific additional relief, may be granted indefinitely, or for a time determined and specified by the judge hearing the case.4 There is no filing fee for a victim of abuse filing a petition for Protection from Abuse.

Who may petition for a PFA?

Persons who have been or fear they will be victims of abuse may petition for PFAs. If the victim is a child or otherwise incompetent to file, another person or the State of Alabama Department of Human Resources may file on the victim's behalf,5but for the purposed of this article, we will primarily focus on competent adults.

For relief to be granted, a victim must have one of a list of statutorily-defined relationships with the defendant.6

• Victim is defendant's spouse (including spouse at common law) or former spouse

• Victim and defendant have a common child

• Victim and defendant had a dating relationship (a relationship characterized by the expectation of affectionate or sexual involvement over a period of time and on a continuing basis, which relationship ended not more than one year before the filing of the petition7 )

• Victim lived with defendant and (1) had an affectionate or sexual relationship with defendant or (2) was related to another person living in the home who had such a relationship

• Victim is the parent, child, stepparent or stepchild of the defendant and lives with defendant

The PFA Act's list of qualifying relationships has previously differed from those used for the purposes of criminal prosecution. It was possible that a person would be considered a victim of domestic violence for the purpose of filing criminal domestic violence charges, but not be eligible for relief under the PFA Act. The 2016 amendments to both the Protection from Abuse Act and the domestic violence criminal statutes standardize the definition of "victim" between the two bodies of law.8

What is abuse?

While the prevailing perception of domestic violence as physical assault certainly is not incorrect, it is also not sufficient. What conduct rises to the level of "domestic violence" is a question that may yield different answers from practitioners in various fields, be it criminal prosecution, civil law or social services. To eliminate confusion, the Protection from Abuse Act defines domestic violence in terms of predicate crimes committed against a victim, with references to the criminal code.[9] For example, a finding that a defendant committed harassment, as defined in Ala. Code §13A-11-8 (1975), against someone with whom the defendant has one of the qualifying relationships outlined above, constitutes domestic violence. The full listing of predicate crimes that may constitute domestic violence for the purposes of a PFA are codified at Ala. Code §30-5-2(1) (1975) and include physical crimes like assault, kidnapping and unlawful imprisonment, as well as property crimes such as arson, theft and criminal trespass, and what could best be called crimes of intimidation like harassment, menacing, criminal coercion and stalking.

What relief is available via a PFA?

Both ex parte relief and final relief are available to victims of domestic violence in a PFA. Any relief granted must be supported by facts in the initial petition or presented at trial.

Any or all of the following relief may be granted ex parte, based on the facts alleged in the initial petition.[10]In addition to ordering the defendant to refrain from further acts of abuse or conduct that would cause the victim to be afraid of further abuse, a judge may also order the defendant to refrain from contacting the victim at all. The defendant may be ordered to stay 300 (or more) feet away from the victim's home, place of employment or school. If the parties have common children, the court can award ex parte temporary custody of those children to the victim and order the defendant to refrain from interfering with that custody until a hearing can be held. Temporary possession of a shared residence can be awarded solely to the victim, as well as use of personal effects and an automobile. The court can order the defendant not to dispose of, or otherwise encumber, property mutually owned or leased by the parties, in the victim's absence.11

Once the defendant has been served and a hearing held on the merits, the relief above may be made final and additional relief is available to a victim, including visitation arrangements and child support determination, evicting the defendant from jointly-leased property, attorney's fees and possession of a vehicle for the victim, if defendant has other means of transportation.12

Procedural Considerations

Forms are created and promulgated by the Administrative Office of Courts for both petitions and orders. The statute requires that the form be used in issuing both ex parte and final PFAs, but additional pages may be attached if special relief is ordered.13 This requirement is, in large part, a safety consideration. Having all PFAs look the same throughout the state ensures that the orders are instantly recognizable as such when presented to law enforcement and encourages uniform enforcement of their provisions. A form order leaves little doubt as to its purpose, whereas drafting practice for other orders varies among the various courts and judges. The current forms for PFAs can be downloaded from the Alabama Administrative Office of Courts' e-forms page.14

The procedure for obtaining a PFA is intended to be an expedited one. The newly amended statute15 does not change current procedure in that respect. The procedure outlined requires a ruling on petitions for ex parte relief within three business days of filing16 and a hearing on the merits of the petition at the defendant's request17 or within 10 days of service on the defendant.18 This expedited hearing process ensures not only that the victim can quickly take...

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