Wednesday, April 23, 2014

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Please be advised that our Legal Help is currently under review and subject to change.

Q: I have always been told that a wife can't testify against her husband. What good will it do for him to be arrested and taken to jail if I can't tell the judge what happened?

A: It is the general rule that one spouse cannot testify against the other, but there are several exceptions to that rule. The rule of "spousal privilege" which keeps spouses from testifying against each other does not apply if the crime is committed by one spouse against the other. The rule also does not apply if a violent crime is committed against a child. If your husband has physically or sexually abused you and any of your children, or if he has committed any other crime against you, you can be called by the prosecutor to be a witness at trial and can testify to anything that happened just as you would if the defendant were not your husband.

Q: At what age can a child be left at home alone when a mother has to work?

A: There is no "home alone" law in Mississippi and no guidance in the state law as to when a child is old enough to be left alone. The Department of Human Services has investigated many cases of children being left alone, but has failed to establish any commonly accepted guidelines. Many children have become "latch key kids," coming home after school by themselves and staying alone until their mother gets home from work. Many young teenagers baby-sit with other children - their own siblings or a neighbor's child. If teenagers age thirteen or above, is a responsible person, there's probably no reason why she or he cannot be left in charge of younger children for short periods of time. Children younger than that should probably not be left with the obligation of caring for younger children for any period of time. Leaving a child under the age of thirteen at home alone, with or without younger children present, is not against the law, but it could lead to a DHS investigation and, if the DHS social worker felt that the child or children were not safe in the circumstances, to youth court hearing.

Although there is no law on the subject, the big concern is the safety of the child, and both DHS and law enforcement can act if they feel that a child is endangered by being at home alone. If infants or very young children are left alone for any length of time at all, charges of neglect could be filed and the parent who left them alone could be criminally prosecuted as well as taken to youth court.

Q: Should I file charges against my husband when I know that if he goes to jail and loses his job, my children and I won't have any means of support?

A: If the police are doing their job according to the law, you shouldn't have any choice about whether or not charges are filed in most cases. If they respond to a domestic violence call and find probable cause to believe that an act of violence - simple or aggravated assault or disturbing the peace - has occurred within the last 24 hours, they are bound by law to make an arrest. They cannot base their decision about whether or not to arrest the abuser on the wishes of the victim.

Unfortunately, this law is not followed as strictly in some parts of the state as it is in others. If the police officers who respond to the call ask you whether or not you want to file a charge, which they should not do, you should remember the violence that led to the police being called in the first place. Are you willing to continue this type of abuse for yourself and/or your children, or do you want to get help now? Help is available through the domestic violence shelters to enable you and your children to have a violence-free life, even if your abuser was the only source of financial support before his arrest. The judge can also order that he continue to support you and the children while he is awaiting trial and, if he is convicted, after his jail or prison term is ended.

Q: Can the father of my children use my past against me?

A: If you are talking about a custody battle, that question is too general for any helpful answer. It would depend in large part on what your past consisted of. If you are hiding a prior crime, or running from the law, of course it could be used against you. If, on the other hand, you mean can he use former wrongdoing which does not amount to criminal action, probably not. It would depend also on the time line you are talking about. If the "past" means before the children were born, or before the marriage, it would have to be something pretty horrendous for a judge to consider it, especially if your partner knew of it prior to the marriage of relationship.

When deciding custody issues, Mississippi judges are allowed to look at only the best interests of the child, not the best interests of the parents. Generally, the courts have not penalized parents for things in their past, only for current actions which adversely affect the children's well-being.

Q: What evidence will a victim of domestic violence need to have the father's visitation with the children supervised?

A: If the father has sexually abused a child, his visitation should be either strictly supervised or stopped altogether. If he has physically abused a child in such a way that serious injuries have occurred, the same would apply. If he physically abused a child but there were no serious injuries, a judge would look at the evidence presented, consider whether or not the children were safe with him on unsupervised visitation and make his decision accordingly.

If the children have not been physically or sexually abused, but the father has committed acts of violence on the mother in the presence or hearing of the children, a judge will take that into consideration in ruling on visitation. Although all acts of violence in the home should be considered as harmful to children, many judges will not consider acts which the children did not see or hear as a reason to order supervised visitation, unless the father was arrested, convicted and jailed for violence. If a man has been convicted as assault or any other violent crime, whether against a family member or anyone else, this should be presented to the judge as a factor to be considered in deciding on visitation. If he has any other type criminal record, the judge should be made aware of this.

If the father has a serious alcohol problem or is using drugs, this evidence should be presented to the judge.

Remember that anything you are trying to present in court must be admissible evidence, not rumor or speculation. You can testify only to what you know; not what you believe or suspect.

Q: My husband has destroyed my belongings and the police have told me that I can't file charges because a husband has equal rights to all property. What can I do?

A: Your personal property, things that were bought by you or given to you as gifts, belong to you and no one, not even your husband, has "equal rights" to them. You husband would have equal rights to things that were bought by both you for joint use - for instance, your home, your furniture. Mississippi law says: "Every person who shall maliciously or mischievously destroy, disfigure, or injure, or cause to be destroyed, disfigured or injured, any property of another, either real or personal, shall be guilty of malicious mischief." The penalty for this crime is a fine of twice the value of the property destroyed or up to 12 months in jail. There is no exception in this law that allows a husband to destroy to property of his wife. The law also provides that the same punishment will apply to "anyone who by any word, deed or act directly or indirectly urges, aids, abets, suggests or otherwise instills in the mind of another the will to so act." If your husband gets someone else to destroy your property, he is just a guilty as if he had done it himself.

This is Sec. 97-17-67 of the Mississippi Code. Show this to the police when you go to file charges for destruction or damage to your property. They cannot prevent you from filing charges. If they do, go to the city or county attorney in your town or county and let him know that you have tried to file charges and have been prevented from doing so. If you cannot get any help from the attorney, your area shelter director will help you get in touch with someone in the Office of the Attorney General.

Q: How can I protect my belongings that I left at the house when I had to go to the shelter? And will I lose my home if I go into a shelter?

A: If you seek a protective order for your own and your children's safety, it can also order that no property jointly owned by you and your abuser be sold or transferred during the duration of the protective order. The judge can order that you remain in the home and your abuser move out.

If you have to go back to the house to get clothing, food, medicine or anything else needed for you and the children to remain in the shelter, you can ask for police protection. (See Section Two). You can also let your abuser know, by any means other than direct contact, that you will have him arrested for malicious mischief if he damages or destroys any of your property.

Q: If the car that a domestic violence victim has been using is titled in her husband's name, or her boyfriend's name, can she take it?

A: No, not without an order of a judge allowing her to take it and use it until property matters have been settled in court. If she helped to pay for the car, or if her husband or boyfriend has another car that he customarily uses, a judge would probably award her the use of the car, but she is in danger of criminal charges if she just takes it without a court order.

Q: Will the husband or boyfriend of a domestic violence victim be able to file abandonment on the victim if she leaves the residence without the children?

A: Not if she was forced to leave because of a violent situation which made her fearful of serious injury of death, particularly if under the circumstances at the time she was unable to take the children with her. In any custody hearing, the judge would take the reason for the flight into consideration and it should work for, not against, the mother. If the mother left when there was not a violent situation, when she had no reason to fear the husband or boyfriend, and did not attempt to take the children with her, a judge could consider that and it would be a mark against her in determining custody. The important thing is being able to prove that the reason for leaving was his violence or his threats of violence. The next most important thing would be proving that it was impossible to get away with the children at the time. Any possibility of losing the children in a custody battle would be lessened by the mother taking whatever legal steps she could to get the children as soon as she was able to do so after having to leave the home.

Q: Can I take my children and leave the state and not leave any address or phone number for the children's father?

A: That would be very risky for future custody proceedings. Legally, if neither of you have ever been to court and there has been no award of custody to either parent, you both share equally in the raising of your children. In that case, there is no legal impediment to your taking them out of state. However, if he goes to court and files for custody, the case would be heard in a Mississippi court, not a court of the state that you have moved to, and you could not have it transferred to a court of that state. The fact that you had taken the children without letting him know where they were could certainly be used against you, unless you could show the judge that staying there, or letting him know where you were, would be dangerous for you and for the children.

If you are in that situation and need to leave the state, the safest thing to do would be to get an attorney before you leave Mississippi, or if you have to go suddenly as soon as you can after you have left, file for temporary custody, ask for an emergency hearing and convince a judge on the front end - not the back end - that it is necessary for your safety to leave the state and for the children's father to have no contact with you or them. If you can't afford to get a lawyer, call the Mississippi Bar Association at (601) 948-4471 and ask for the Pro Bono Project. They will help you get an attorney who will handle your case for free if you fit their economic guidelines.

Q: If I have to leave, can I force my children to go with me?

A: Again, the ages of the children would have to be taken into consideration, along with your assessment of any danger to the children if you left them there. As we discussed before, if there has been no court determination of custody, both parents share equally in raising the children, including their physical presence. You have the right to take the children with you; he equally has the right to come and take them back. The only way to avoid this tug of war is to go to court and have a judge decide which parent should have primary custody. If the children are very young and you are in an emergency situation, take them with you if you can and get to a court as quick as you can. If the children are older (teenagers) and want to stay with their father, you cannot force them to leave with you unless you have a court order.

Q: Should a domestic violence victim allow her children to see or call their father while she is waiting to file for custody? South Mississippi judges want the father to have visitation even if it would be dangerous to the victim.

A: This is difficult to answer because everyone's situation is different and an answer would depend on so many factors. Are the children old enough to be trusted not to reveal where they and their mother are staying? Is there a responsible third party who could stay with the children while they were seeing their father? Is there a danger that the father would take the children? Is the court already involved? Is there an outstanding order for visitation?

If the court orders visitation, you have little choice unless your attorney can get an emergency rehearing based on danger to you or to the children. If you do not follow a court order, you will definitely be at a disadvantage when the custody hearing comes up, and could even be jailed for contempt of court. If there is no court order of visitation, but you are afraid that a judge will hold it against you if you do not allow the father to see or talk with his children, try to get a responsible or relative to go with the children to meet with their father in a public place.

Q: How can a mother get custody of her children if she cannot work, has no place to live and is on disability for a mental disability?

A: In awarding custody, judges have a duty to consider only the best interests of the children. If you don't have a place for the children to live, you would have to show the judge that you have applied for help in getting housing and that you will have a place in the near future. If you cannot show that, the judge could not grant you custody. If you cannot work, you would have to show that your disability payment along with economic help you can get from other sources (food stamps, rent subsidies, etc.) would be sufficient to support your children. Don't forget that the father of the children has a duty to support them, even if they are not in his custody and the judge can take this into consideration and order him to pay child support to you. Whether or not the mental disability would keep you from having custody of your children would depend on the type and severity of the disability. If it does not interfere with your ability to take care of your children, it should not be a factor in determining custody, but you may have to get someone from the mental health field, probably your doctor, to testify that you are able to competently raise your children.

Q: How can I protect myself and my job if my ex-husband is constantly calling my boss and fellow workers?

A: If he is calling and harassing you, or if he is threatening you, you can file stalking charges and/or charges of telephone harassment (See Section One). If he is calling your employer and co-workers and telling things that are untrue for the purpose of getting you fired or making trouble for you, you can file a civil suit for slander. You can get a protective order to keep him away from your workplace and, maybe, you can get a judge to extend the order to prohibit him from placing phone calls to your workplace. If his calls to your workplace and disruptive and interfering with the job performance of other employees, your boss could try to get an injunction against his calls. The employees, who are receiving the phone calls, if they are made often enough and are disturbing enough, can file charges for telephone harassment. If you are afraid that the harassment is going to cause you to lose your job, your best avenue is to discuss the situation frankly with your employer. He or she might have other ideas about how you can protect yourself or of things that can be done to stop the phone calls.

Q: Will coming to a shelter benefit me when I go to court for a divorce?

A: The fact of going to a shelter would probably have no direct effect on granting of a divorce, but the fact that you had to leave your home could be evidence of the severity of the abuse to which you were being subjected. Also, in the shelter you would be in the company of others who have the same problems and a staff trained to help you regain control of your life. This could be a positive factor when you are going to court for your divorce.

Q: Who qualifies for legal service assistance? What does legal services office do?

A: The answer to this may differ according to which county or district of the state that you live in. There is not a statewide legal services office, or guideline for the services that legal service must provide. Each legal services office has its own policy; some of them do not take domestic cases at all. In order to see if your income level qualifies you for legal services in your area, and to see if they provide the type of service that you need, call the nearest legal service office. If you do not find the information in your local phone book, call the Mississippi Bar Association at 601-948-4471 and ask for the Pro Bono Project. They can tell you which is the nearest legal services office and what types of cases they handle. Additionally, if the legal service near you does not handle domestic cases and if you meet the economic guidelines, someone at the Pro Bono Project will try to help you get an attorney in your area that you can afford.

Q: What is the Victims Compensation Program?

A: The Victims Compensation Program administers funds set aside from fines and assessments paid by convicted criminals. This money is given to victims of violent crime to pay hospital and medical bills, lost wages, and other expenses caused by the crime. It can also be used for mental health counseling for victims, for funeral expenses for deceased victims and for other expenses related to the crime. The Victims Compensation Office is in Jackson and the telephone number to call for more information is 601-359-6766. There are application forms at every law enforcement agency in the state and in the district attorney's office in your area. They are also available at hospitals and at most doctors' offices, as well as the domestic violence shelters.

Q: How do I file charges for stalking?

A: First, read the discussion of stalking in the first section to see if the harassment or following amounts of the crime of stalking. If you are being repeatedly followed or harassed by the same person, or if you are being physically threatened and have good reason to believe that the person is capable of and intends to carry out the threat, go to the law enforcement agency in your town if you live within the city limits or to the sheriff's office if you live outside a town. Describe to them the harassment and/or following that is going on and tell them you want to file charges. You will be asked to sign an affidavit describing the stalking activities. If you have a protective order against this person, be sure and tell them that, too. He may be guilty of violating the protective order as well as stalking. After you file your charge, the police may arrest on the strength of your affidavit, or they may investigate to see that there is corroboration evidence for an arrest, so it will help if you give them the names of any witnesses to the stalking and can give them specific times, dates, and places where the stalking has taken place.

Q: What is the difference between a peace bond, a restraining order and a protective order?

A: A peace bond is issued to guarantee that the person named on the bond will "keep the peace." If he commits any violent act while he is under bond, he forfeits and must pay the amount ob the bond into the court. A restraining order is a directive from a judge telling a person not to do a certain thing. If he violates the order by doing this prohibited act, he can be found in contempt of court and can be jailed or fined. The time of incarceration and the amount of the fine is largely in the discretion of the judge. A protective order is a type of restraining order, issued to protect a certain person or group of persons, usually family members. If a person is committing acts of domestic violence against you and you get a protective order, it prohibits him from coming near you and puts whatever other restrictions on him that the judge thinks are needed to ensure the safety of you and your children.

Q: How can I get a protective order?

A: This is explained in detail in Section Two.

Legal Notice

This website is intended to provide general information only and is not to be considered legal advice in any manner. If you, a friend, or a family member are experiencing a crime of domestic violence, it is imperative that you contact the authorities and also seek legal advice through an attorney who will be able to represent your interests regarding the legal issues contained herein.

Domestic violence is a crime that not only impacts women. Men can be victims of violence at the hands of women. Violence also occurs between individuals of the same gender. However, for ease of written conversation on this website, the batterer will be referred to as “he” and the victim as “she.”

Copyright 2009 by Mississippi Coalition Against Domestic Violence