Cleveland Jewish News
June 17, 2022 | By Meghan Walsh
Over the last couple of months, there has been an increased interest in domestic legal proceedings. There are, however, some misconceptions about those types of cases, such as what makes them civil or criminal, and what areas of specialty are most qualified to handle cases of varying natures.
Attorneys Jay Kelley, managing partner at Elk & Elk in Mayfield Heights; Eric Long, partner at Friedman & Nemecek, L.L.C. in Cleveland; and Andrew Zashin, co-managing partner at Zashin & Rich in Cleveland, discussed defamation and domestic violence cases, the criteria that makes them civil or criminal and the types of attorneys best equipped to assist in the proceedings.
“The first thing they should do is they should contact an attorney early,” Kelley said. “Do not wait because you want to make sure that you can preserve evidence.”
This evidence may include the conduct being alleged, eyewitnesses who can support the claim; physical documentation such as medical records and bills; and financial documentation such as wage loss, he explained.
Kelley recommended that, when searching for an attorney, people should ask questions about their experience in the field – such as how often they deal with these types of cases and when the last time they handled one was.
“I think the first question that you should ask the attorney, the attorney who is going to be handling your case, their experience with that case type or similar cases,” Kelley advised. “I think, a lot of times, we believe that all attorneys practice in all areas of law and the practical reality is we all tend to have areas of the law where we spend more of our time.”
Finding someone who has more experience in a given type of case means they are more familiar with possible nuances in those areas of law, Kelley pointed out.
“You’ve got to have an attorney that’s got the skill and knowledge within that area,” Long said. “One of the things that’s very important is to make sure there’s that trust and know who you’re working with.”
One of the reasons why a person might pursue a civil domestic violence case over pressing criminal charges is that they may want to resolve it quietly, Long explained.
“There is the potential for civil resolutions that can be made without anything ever being public,” he noted. “There (are) people, situations, where (they) don’t want to have their laundry aired. One it is part of a police report, once it’s part of the criminal justice system, the defendant has all sorts of rights to have this as a public hearing.”
Long added that, other times, people don’t want to see someone who they still love or care about have a criminal record when something like a civil protection order gives them the peace of mind that they’re looking for.
“You have two categories of domestic violence, covered in two different sections of the Ohio Revised Code, one in the criminal code and one in the domestic relations code,” Zashin said. “So, there is criminal domestic violence and there is civil domestic violence.”
He explained criminal domestic violence cases often factually overlap with civil ones.
“Where they factually differ is usually where in a criminal situation the parties involved are not living together, they may not be married to each other or never were married in the first place,” Zashin noted.
The parties may have a child, children or assets, together, or do not know each other well, he continued. Neither may have a lawyer so, if there is an altercation, the first call is usually to the police. If called, police almost always make an arrest and thereafter a domestic violence prosecution follows. A family law case, as well as a civil domestic violence case, may follow, he added.
“With regard to both civil and criminal protection orders, restraining orders are issued,” said Zashin,who writes a monthly law column for the Cleveland Jewish News. “Violations of these court orders, issued under the criminal or civil protection order statutes may result in more severe consequences than violating typical court issued restraining orders.”
Sometimes, when people are hurt, but the police are not called, one of the parties may call a lawyer later, he said.
“In that case, a petition for a domestic violence case can still be filed but almost always that will be a petition for domestic violence in domestic relations court or in juvenile court, rather than a criminal domestic violence case in a municipal court,” he noted.
Zashin said a person seeking relief in such a case will need to bring with them whatever evidence they have. Fact witnesses, material evidence (like a hospital record or an EMS report), pictures of bruises, broken objects or anything that can prove the violence happened and that the other party put the petitioner in imminent fear of harm.
“In a criminal trial, there is a jury,” Zashin stated. “In a civil protection order (CPO) case, there is just a judge or a magistrate. There’s no jury.”
He explained the consequences of these cases can be losing the right to possess firearms, losing possession of children, being evicted from one’s home or being ordered to pay support. Zashin also noted that a finding of domestic violence is taken into account when considering the appropriateness of shared parenting. Therefore, a domestic violence proceeding has far reaching consequences for both parents and their children.
“These cases typically revolve around family members,” Zashin said. “They’re almost never complete strangers.”