People who are struggling to deal with an abusive spouse or partner have a number of options available to them, according to Kubiak & Kubiak’s Simon Kubiak, an attorney in Albuquerque, New Mexico who specializes in criminal defense and domestic violence cases. A number of advocacy groups are available to help both victims and their children, and many of these organizations can even provide temporary shelter or job placement assistance as well.
Kubiak advises people who are dealing with an abusive spouse to take themselves and their children and move into a domestic violence shelter, since personal safety should come before anything else. As long as there is not a custody order in place that limits where the children can be taken, one spouse should have no trouble taking the children to live with a grandparent or a close family friend while things at home get settled down and arranged by the court. “Basically, the best advice is to get away from the situation, because you don’t want to stay in any abusive situation,” Kubiak says. “And especially, you don’t want to keep your kids in an abusive situation.”
One thing that Kubiak advises all domestic violence victims not to do, though, is to attempt to lie or distort the facts in order to gain leverage in a custody case. As an attorney in Albuquerque, he says he frequently sees people who will try to use their children as a tool to get an extra advantage with the judge during a custody proceeding. “It happens a lot here, and the courts are not very happy about it,” he says.
These types of fraudulent domestic violence allegations most commonly occur when a divorce case is going on, according to Kubiak, and there is a motion for custody that is coming up. He says that just before the motion for custody comes up, what will sometimes happen is that one parent will take the children down to a domestic violence shelter and allege that the other spouse is guilty of abuse. “It’s usually the mom saying that that dad beat her up, or the dad saying that the mom beat him up, or whatever the case may be,” he says.
When this happens, Kubiak says a domestic judge will be forced to deal with the allegations, and oftentimes the alleged abuser will have his or her custody taken away as a result. “The domestic judge will say, ‘How can I let you see your kids if you are a threat?’” Kubiak says.
Kubiak explains that based on what he has seen, usually when one spouse waits until just days before a custody proceeding to allege domestic abuse, that person is probably lying. “In my experience, most of those accusations are lies,” he explains. Judges and the court can see through those lies as well, and anyone who is found guilty of lying to the court about domestic violence allegations could get in serious trouble. “So you want to be careful,” Kubiak says. “Obviously, if you have a legitimate concern then you should go get an order of protection, but just don’t go in thinking that you are going to be able to make up stuff to get leverage.”
How to Defend Yourself From These Charges
If you are the spouse who is being charged with acts of domestic violence that you did not commit, then Kubiak recommends standing firm and remembering that you are still innocent until proven guilty. As a defense attorney in Albuquerque, he recommends that his clients go to all of their hearings, since skipping them out of anger towards the other spouse or partner can send the wrong message to the judge.
At these hearings, Kubiak says a hearing officer or judge will consider the safety of any minor children in the case. Based on the facts brought to court by both parties, the judge will put together a temporary custody and visitation schedule that both spouses must follow.
Although it can be difficult to attend these hearings knowing that the charges a spouse is throwing at you are fraudulent, Kubiak says that it is important to show up to each and every hearing that is scheduled. “If you don’t show up to your hearing, then the judge will have no choice but to give full custody and control of the kids to the mom or dad who did show up,” he says.
In that case, if a judge has already given full custody to the other partner, then Kubiak says you will have to go back into court and fight to have that ruling reversed. “So you definitely want an attorney to defend yourself, because it not only affects you but it also affects your custody and visitation rights with your kids,” he says.
This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.
