I’m Facing Charges Related to Domestic Violence. Can I Still Be in Touch With My Own Children?
Whether or not a parent is allowed to see their own children depends on the circumstances, and each case is different. If you are brought to court with a charge related to domestic violence, oftentimes the prosecution will ask for a no-contact or stay-away order with the alleged victim, meaning typically the adult alleged victim. If there were children involved and the alleged victim asks for a no-contact stay-away order, the prosecution will ask that of the court, and the judge will likely issue the no-contact and or stay-away order.
When allegations are of a sexual nature, such as a sexual assault or indecent assault and battery, a judge is most likely going to issue a no-contact stay-away order. The alleged victim could also ask a Probate Court judge to make the order in criminal court if the judge in the criminal court doesn’t do so immediately. The Probate Court proceeding would be a separate proceeding and it is civil in nature.
The other issue the comes up with domestic violence charges when children are involved surrounds the Department of Children and Families, or DCF. That is an agency separate and apart from the court system. DCF aggressively gets involved in domestic violence cases that involve children. I have had many people tell me that DCF actually threatens to take away a child if the alleged victim does not keep a defendant away from a child during the pendency of the criminal proceeding. Whenever DCF is involved in a criminal case relating to a domestic violence charge, I would recommend an alleged victim retain an attorney experienced in DCF matters to make sure their rights are protected.
The Person I’m Accused of Harming Is Offering to Talk to Police and Set the Record Straight. Should I Have This Person Talk to Law Enforcement or the Prosecutor on My Behalf?
This is a really tricky situation. If there’s a no-contact order in place, that means you are not to have contact with the alleged victim directly or indirectly. Directly means you are not to communicate with them by phone, text, email, or any type of social media. Indirect contact means you cannot ask a third party to reach out to the alleged victim. Therefore, advising the alleged victim to contact the police to set the record straight would be a violation of any type of no-contact order if one were in place.
If you have received valid information that the alleged victim does want to set the records straight, it could be appropriate for your attorney to have an investigator speak with the alleged victim to see if the investigator can get a statement from the alleged victim which can be presented to the prosecution. The investigator would have to make it clear that the request does not come on the behalf of you, the defendant. Massachusetts has a witness intimidation statute that is very broad, making it easy for district attorney’s offices and police departments to use to charge a defendant with witness intimidation if there is an allegation relating to interfering, harassing, intimidating, or threatening a witness to a criminal proceeding – this includes an alleged victim. If an alleged victim were to contact the police and say, “The defendant’s investigator is trying to get me to talk to the district attorney or the police to recant the allegations,” that could certainly be construed as witness intimidation under the statute. In cases where an alleged victim does reach out to the defendant wanting to set the record straight, it’s best for the defendant to consult a lawyer, who will look at what type of temporary orders are in place and decide how to handle the situation.
What Strategies Can Be Used to Defend the Clients in Domestic Violence Cases? Is Self-Defense a Viable Defense?
In domestic violence cases, the lawyer needs to meet with the client, dig deep into the nature of the relationship, and get background information on the alleged victim. Common areas of concern would be: Does the alleged victim have any mental health problems, any substance abuse issues, any motivating factors that would drive them to make an allegation of domestic violence? Some strategies might involve looking at motivating factors for an alleged victim to make a false claim. An example of a typical motivating factor would be the alleged victim looking to retaliate after the defendant breaks up with them. Another common factor involves an alleged victim’s substance abuse problems; they try to divert their own problems onto the defendant.
Self-defense is certainly a viable defense; if an alleged victim tried to commit physical harm to a defendant, the defendant certainly has the right to use reasonable self-defense measures to defend themselves.
The bottom-line is, when you have a domestic violence allegation, the attorney will ask for a thorough background of the relationship between the parties in order to direct an investigation to develop any reasonable defenses that would be appropriate.
For more information on Domestic Violence in Massachusetts, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (508) 503-6440 today.
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